1.1 In these Conditions:-
"Buyer" means individual or organisation who buys or agrees to buy the Goods from the Seller
"Contract" means the contract for the purchase and sale of the Goods and Services subject to these Conditions;
"Conditions" means the terms and conditions set out below;
"Goods" means the goods (including any instalments or parts) which the Seller is to supply;
"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made; and
"Seller" means Volumatic Limited (registered in England under number 1069143).
1.2 In these Conditions:-
1.2.1 any gender includes any other gender;
1.2.2 headings shall not affect interpretation;
1.2.3 any reference to a statutory provision includes a reference to any modification or re-enactment of the provision from time to time in force;
1.2.4 references to the "Goods", the "Contract", the "Services" or any payment includes any part of any of them.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall buy the Goods and the Services subject to these Conditions, which supersede any other terms and which govern the Contract to the exclusion of any terms and conditions which the Buyer purports to apply or which are implied by trade, custom or course of dealing.
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer's order or other document will form part of the Contract simply as a result of such document being delivered to the Seller or referred to in the Contract.
2.3 Any variation to these Conditions is of no effect unless agreed in writing by an authorised representative of the Seller.
2.4 These Conditions, together with the Special Conditions (if any) constitute the entire agreement between Buyer and Seller for the supply of the Goods and the Services.
2.5 The Seller's employees or agents are not authorised to make any representation concerning the Goods or Services unless confirmed by the Seller in writing, and the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such unconfirmed representation (unless such representation is made fraudulently).
2.6 Any advice or recommendation given by the Seller or its employees or agents to the Buyer as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk.
2.7 Any typographical, clerical or minor error or omission in any document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. QUOTATIONS, ORDERS AND SPECIFICATIONS
3.1 A quotation by the Seller is not an offer. Quotations are valid for 30 days only and subject to withdrawal or revision at any time before acceptance of the Buyer's order by the Seller.
3.2 Each order for Goods and/or Services by the Buyer is an offer by the Buyer to purchase the Goods and/or Services subject to these Conditions.
3.3 No order submitted by the Buyer is accepted by the Seller until the Seller confirms its written acceptance or (if earlier) the Seller delivers the Goods or supplies the Services to the Buyer.
3.4 The Buyer must ensure that the terms of any order (including any specification) are complete and accurate and that it gives to the Seller any necessary information relating to the Goods and Services within a sufficient time to enable the Seller duly to perform the Contract.
3.5 Where the Goods are manufactured or where standard goods of the Seller are altered in order to become the Goods in either case in accordance with information, drawings or instructions supplied by the Buyer:-
3.5.1 no guarantee or warranty is given by the Seller as to the practicability, efficiency, safety or otherwise of the Goods;
3.5.2 the Buyer shall indemnify the Seller against all liability incurred by the Seller as a result of:-
(a) the Goods infringing any intellectual property right or any statutory provision;
(b) any impracticability, inefficiency, lack of safety or defect in the Goods where any of these is due wholly or partly to faults or omissions in any such information, drawings or instructions;
3.5.3 all work (including design drawings) and any idea, invention or improvement made by or on behalf of the Seller pursuant to the Buyer's commission and all intellectual property rights therein (including any design right in a design created by the Seller) belong to the Seller; and
3.5.4 the Seller shall not be liable to the Buyer in respect of any loss, damage or claim incurred by or made against the Buyer if any Goods infringe any intellectual property right.
3.6 The Seller reserves the right to make any changes in the specification of the Goods or Services which are required for the Goods or Services to conform with any applicable safety or other statutory or EU requirements or which do not materially affect their quality or performance.
3.7 All descriptions, samples and illustrations issued by the Seller are intended merely to present a general idea of the Goods described and do not form part of the Contract.
4. CANCELLATION AND DELAY
4.1 No order may be cancelled by the Buyer except with the Seller's written agreement and on terms that the Buyer shall indemnify the Seller against all loss (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4.2 If the Buyer extends or delays the Contract or fails to take delivery of any Goods at the agreed time or (if no time is agreed) within a reasonable time then the Buyer shall indemnify the Seller against all loss (including loss of profit), costs (including the cost of storage and all labour and materials used), damages, charges or expense incurred by the Seller as a result of such extension, delay or failure.
4.3 The Seller reserves the right to defer the date of delivery or performance, to cancel the Contract or reduce the volume of Goods ordered without liability to the Buyer if it is prevented from or delayed in carrying on its business by any cause beyond the Seller's reasonable control. In such circumstances, the Buyer may also give written notice to cancel the Contract if the cause in question continues for a continuous period in excess of 180 days but in any event shall remain liable to pay for Goods or Services delivered or supplied prior to such cancellation by the Seller or the Buyer.
5.1 The price of the Goods and Services is the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of delivery or supply. Where the Goods are supplied for export from the United Kingdom, the Seller's published export price list applies.
5.2 The Seller reserves the right at any time before delivery or performance to amend the price of the Goods or Services to take into account any variation in cost to the Seller.
5.3 Any price quoted by the Seller for the Goods is exclusive of the cost of delivery to the Buyer (including transport, packaging, insurance and any taxes, duties or surcharges).
5.4 The price is exclusive of any applicable VAT.
6.1 Payment of the price for the Goods and Services is due on the 30th day of the calendar month following the month of invoice.
6.2 Time of payment is of the essence.
6.3 For the purposes of these Conditions, payment is received when the Seller receives it in cleared funds.
6.4 Payment by the Buyer shall be made without any deduction or set off.
6.5 Interest at an annual rate of 4% above HSBC base rate from time to time will accrue daily (both before and after judgement) and be calculated on a daily basis on overdue accounts from the date of invoice until payment.
6.6 Despite any provision allowing credit, payment is due and payable to the Seller immediately upon cancellation or termination of the Contract.
6.7 The Seller shall be entitled to payment for all instalments of Goods delivered to the Buyer, whether under a blanket order or otherwise.
6.8 If the Buyer fails to make any payment on the due date then the whole price of all goods or services bought or agreed to be bought by the Buyer shall be immediately due and payable without demand and the Seller may:-
6.8.1 cancel the Contract or suspend deliveries or performance to the Buyer; and/or
6.8.2 appropriate any payment made by the Buyer to such of the Goods or Services (or the goods or services supplied under any other contract between the Buyer and the Seller) as the Seller thinks fit.
6.9 The Seller is entitled to set off sums owed by the Seller to the Buyer against sums owed by the Buyer to the Seller.
7.1 Delivery of the Goods shall be within the time agreed and if no time is agreed, within a reasonable time 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 at the Buyer's cost. The Seller may make delivery by instalments.
7.2 Any dates for delivery and/or performance are approximate only and time of delivery and/or performance is not of the essence.
7.3 No claim for damage or shortages will be considered unless the Seller is given written notice within seven days of delivery. If no such notice is received by the Seller, the Buyer is deemed to have accepted the Goods.
7.4 No claim for non-delivery will be considered unless the Seller is given written notice within seven days of the date when the Goods would in the ordinary course of events have been received.
7.5 Any claim for damage, shortages or non-delivery must also be notified to the carrier by the Buyer in the manner and within the appropriate time limits prescribed by the carrier's terms and conditions.
7.6 In the event of failure by the Buyer to give the appropriate notices as specified by Conditions 7.3 to 7.5 any claim by the Buyer is deemed to have been waived.
7.7 Where the Goods are to be delivered or Services are to be performed in instalments, each delivery or performance shall be a separate contract and failure by the Seller to deliver or perform any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.8 If the Buyer fails to take delivery of the Goods or the Seller is unable to deliver the Goods on time because the Buyer has not provided adequate instructions, documents, licences or authorisations, then the Goods are deemed delivered and the Seller may:-
7.8.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.8.2 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.
8. RISK AND PROPERTY
8.1 The Goods remain the property of the Seller until:-
8.1.1 their full price has been received by the Seller; and
8.1.2 all other sums which are or which become due from the Buyer on any account with the Seller have been received by the Seller.
8.2 If payments received from the Buyer are not stated to refer to a particular invoice the Seller may appropriate such payments to any outstanding invoice.
8.3 The Goods are at the risk of the Buyer from the time of delivery.
8.4 Until ownership of the Goods passes to the Buyer, the Buyer must:-
8.4.1 store them at its own cost on its premises separately from any other goods and in a manner which makes them readily identifiable as the goods of the Seller;
8.4.2 not destroy, deface or obscure any identifying mark or packaging of the Goods;
8.4.3 maintain the Goods in a satisfactory condition insured on the Seller's behalf for their full price against all risks; and
8.4.4 hold the proceeds of insurance referred to in Condition 8.4.3 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn account.
8.5 The Seller may, so as to discharge any overdue payment recover or resell the Goods.
8.6 In order to verify the Buyer's compliance with its obligations under Condition 8.4 and to exercise its rights under Condition 10, the Seller shall be entitled by its employees or agents without notice to enter the Buyer's premises or such other premises where the Goods are stored.
8.7 The Buyer's right to possession of the Goods terminates immediately if any of the events set out in Condition 13 occurs.
8.8 If the Goods shall be sold by the Buyer before payment for them has been made that part of the proceeds of sale which represents or is equivalent to the amount owed by the Buyer to the Seller shall be held by the Buyer upon trust for the Seller and shall be paid into a separate bank account designated for that purpose. The Seller shall be entitled to trace the proceeds of any such sale(s) into such bank account (or wherever such proceeds may in fact be located) and the Buyer authorises the Seller to make enquiries of its bankers (or otherwise as appropriate) relating to such proceeds.
8.9 The Buyer shall ensure that the Goods are not incorporated in or mixed with or used as part of other goods before full payment for the Goods has been made to the Seller, although if such incorporation or mixing takes place, the property in those Goods which remain identifiable and/or severable from such other goods shall remain with the Seller until payment has been made or such other goods have been sold and all the Seller's rights in the Goods shall extend to such part of those other goods and to their proceeds of sale, which shall be held by the Buyer in accordance with Condition 8.8.
9. RESALE OF GOODS
9.1 It is the responsibility of the Buyer to ensure that no marking or label affixed to the Goods referring the user to the Seller's instructions and/or recommendations for use is removed, tampered with or disfigured in any way.
9.2 If any item comprised in the Goods is resold by the Buyer, the Buyer shall:-
9.2.1 bring to the purchaser's attention all the Seller's instructions and/or recommendations for use which are packed with or appearing on the Goods or which the Seller has notified to the Buyer; and
9.2.2 be responsible for providing full and accurate translations in all relevant languages where the Goods go overseas.
10.1 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or Services or their failure to correspond with specification must (whether or not delivery is refused by the Buyer) be notified to the Seller and the Seller's carriers within seven days from the date of delivery or performance or, where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect or failure.
10.2 In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Buyer to reject them.
10.3 If the Buyer does not notify claims in accordance with Condition 10.1 then:-
10.3.1 the Buyer shall not be entitled to reject the Goods and/or Services; and
10.3.2 the Seller shall have no liability for such defect or failure; and
10.3.3 the Buyer shall be bound to pay the full price for the Goods and/or Services
10.4 In the event the Buyer has a valid claim which has been notified to the Seller pursuant to Condition 10.1, the Seller shall be entitled to repair or replace the Goods or carry out the Services again (or the part or element in question) free of charge or, at the Seller's option, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
10.5 If the Buyer is entitled to reject the Goods because all or part of the Goods are defective, the Buyer must reject all of the Goods and cannot keep some of the Goods and reject the remainder.
11. LIMITATION OF LIABILITY
THE BUYER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
11.1 The following sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Buyer in respect of any breach of these Conditions, any representation, statement or act or omission (including negligence) arising under or in connection with the Contract and in respect of any contemplated performance or lack of performance.
11.2 All warranties, conditions or other terms implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law but this exclusion does not apply to:-
11.2.1 any implied condition that the Seller has or will have the right to sell the Goods when the property is to pass; or
11.2.2 where the Goods are sold to a person dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977, any implied term relating to the conformity of the Goods with their description or sample or as to their quality or fitness for a particular purpose.
11.3 Nothing in these Conditions excludes or limits the Seller's liability for death or personal injury caused by the Seller's negligence or for fraudulent misrepresentation.
11.4 Subject to Conditions 11.2 and 11.3:-
11.4.1 the Seller shall not be liable to the Buyer for any loss of profit, loss of production, financial loss or depletion of goodwill which arises out of or in connection with the Contract or its contemplated performance or lack of performance; and
11.4.2 subject to Condition 11.4.1, the Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance or lack of performance of this Contract shall be limited to the contract price.
The Buyer agrees to indemnify the Seller against any damages, losses, costs, claims or expenses incurred by the Seller towards a third party arising out of or in connection with the Goods or Services supplied by the Seller or their operation or use and whether arising by reason of the negligence of the Seller or otherwise.
13.1 The Contract shall terminate immediately upon the happening of any one or more of the following:-
13.1.1 the Buyer is dissolved or has a bankruptcy order made against him or makes an arrangement or composition with his creditors; or
13.1.2 the Buyer (being a body corporate) convenes a meeting of creditors or enters into liquidation (whether voluntary or compulsory); or
13.1.3 the Buyer has a receiver, manager, administrator or administrative receiver appointed of the whole or any part of its undertaking, property or assets; or
13.1.4 a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer; or
13.1.5 any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer in any jurisdiction to which the Buyer or any of its assets is subject.
13.2 The Contract shall terminate immediately upon service of written notice of termination by the Seller on the Buyer on the happening of any one or more of the following:-
13.2.1 the Buyer has, suffers or allows any execution to be levied on its assets or obtained against it; or
13.2.2 the Buyer commits a material breach of any of its material obligations under the Contract or under any other contract with the Seller; or
13.2.3 the Buyer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
13.2.4 the Buyer ceases or threatens to cease to trade.
13.3 Termination of the Contract shall not affect rights and duties accrued before termination and in particular shall not affect the Seller's rights contained in Condition 8. However, the Buyer's rights contained in that Condition shall immediately terminate.
14. HEALTH AND SAFETY
The Buyer agrees to:-
14.1 pay due regard to all information supplied by the Seller relating to the use of the Goods necessary to ensure the Goods will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work;
14.2 comply with the General Product Safety Regulations 1994 if and to the extent that they are applicable to the Goods;
14.3 indemnify the Seller in respect of any and all claims arising from the Goods being unsafe as a result of the Buyer's activities;
14.4 monitor the safety of the Goods, to pass on to the Seller information as to the risks of the Goods and to co-operate in any action the Seller decides to take to avoid those risks.
15.1 Where the Goods are to be exported to the Buyer the provisions of this Condition 15 shall apply.
15.2 Payment shall be made in England in pounds sterling or such currency as is agreed in writing by the Seller.
15.3 The Buyer will establish and maintain in favour of the Seller an irrevocable letter of credit which shall:-
15.3.1 be confirmed by a UK clearing bank;
15.3.2 be payable on drafts drawn at sight upon presentation to the bank by the Seller of a certified copy of the Seller's invoice;
15.3.3 be established at least 30 days prior to anticipated shipment date;
15.3.4 cover the full price of the Goods (including applicable taxes); and
15.3.5 be transferable.
All bank charges and other expenses in relation to the letter of credit shall be paid by the Buyer.
15.4 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties the Goods.
15.5 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered CIP or EXW at the option of the Seller (as those terms are defined in Incoterms) and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
15.6 The Buyer is responsible for arranging for testing and inspection of the Goods at the Seller's premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
15.7 If there is any conflict between Incoterms and the Contract, the terms of the Contract prevail.
16.1 The Seller is a member of the group of companies and accordingly the Seller may perform any of its obligations or exercise any of its rights by itself or through any other member of its group.
16.2 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller, whether or not under the Contract.
16.3 If any provision of the Contract (including any provision of Condition 8) is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of the Contract which shall continue in full force and effect.
16.4 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract.
16.5 Any waiver by the Seller of any breach by the Buyer is not a waiver of any subsequent breach.
16.6 Any notice to be given by either party to the other under these Conditions must be in writing addressed to that other party at its registered office or principal place of business or such other address as may have been notified for these purposes.
16.7 Notices shall be delivered personally or sent by first class post.
16.8 A notice is deemed to have been received:-
16.8.1 if delivered personally, at the time of delivery;
16.8.2 if sent by prepaid first class post, on the second working day after posting (exclusive of the day of posting);
16.9 The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of the Contracts (Rights of Third Parties) Act 1999.
17.1 The Seller may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it.
17.2 The Buyer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.
18. ENGLISH LAW
18.1 The Contract shall be governed by English law, and the parties submit to the exclusive jurisdiction of the English courts.
18.2 Condition 18.1 is for the benefit of the Seller only and as a result the Seller shall not be prevented from taking proceedings in any other courts with jurisdiction, whether concurrently or not.