Conditions of Sale
CONDITIONS OF SALE
In these conditions of sale ("Conditions") "The Company" means ACC Silicones Ltd with registered
number 460261 , or any successor in title to the Company's business. The "Customer" means a
company, firm, partnership, association, individual, health or public authority or agent thereof to whom
the Company supplies or sells Goods. The "Goods" means and includes any goods agreed in the
Contract to be supplied to the Customer by the Company (including any part or parts of them). The
"Order" means any request by the Customer to purchase the Goods supplied by the Company which may
be accepted or not by the Company. The "Contract" means any contract between the Company and the
Customer for the sale and purchase of the Goods incorporating these Conditions and which is formed at
the time the Company accepts the Order in accordance with the provisions of clause 2 below.
1. SCOPE OF CONDITIONS
1.1 These Conditions apply to all Company's sales and any variation to these Conditions
and any representations about the Goods shall have no effect unless expressly agreed in writing
and signed by an authorised representative of the Company.
1.2 In the event of any difference or inconsistency between these Conditions and any
conditions attached to or referred to in any Order or other documents referred to by the
Customer at any time, these Conditions shall prevail.
2. FORMATION OF CONTRACT
2.1 Each Order or acceptance of a quotation for Goods by the Customer from the Company
shall be deemed to be an offer by the Customer to buy Goods subject to these Conditions and
shall form an independent Contract.
2.2 No Order shall be deemed to be accepted by the Company until a written acknowledgment
of Order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.3 The Customer shall ensure that the terms of its Order and any available specification are
complete and accurate.
3. QUOTATIONS
3.1 Any quotation is given on the basis that no Contract shall come into existence until the
Company despatches an acknowledgement of Order to the Customer.
3.2 The Company reserves the right to withdraw or cancel any quotation at any time without
notice.
3.3 Unless previously withdrawn or cancelled, the Company's quotation expires sixty days
after the date thereof..
4. VARIATION OF PRICES
4.1 The Company reserves the right to alter prices without notice should any fluctuation in
costs arise which are outside the Company's control, and which affect all or any part of an Order
after the acceptance of such an Order.
4.2 Any alteration by the Customer in design, formulation, specification or quantities and
any suspension of work on instructions, or due to lack of instructions, from the Customer will
involve the alteration of the agreed or quoted prices if costs are affected thereby.
4.3 In the case of quotations submitted on the basis of prices ruling at the time, the
Company reserves the right to make adjustments for increases in material or labour costs in
accordance with NEDO or other pre-agreed with the Customer indexes formula.
5. DELIVERY
5.1 The time given for delivery of Goods runs from the date of the Company's acceptance
of a written Order and receipt of all other necessary information to process such Order
including without limitation, specifications and free issue materials or components finally
approved by the Company in writing.
5.2 Dates for delivery are given in good faith but are estimates only and are not guaranteed
and time of delivery shall not be of the essence.
5.3 The Company shall be under no liability whatsoever for any direct indirect or
consequential loss (all three of which terms include without limitation pure economic loss, loss
of profits, loss of business, depletion of goodwill and similar losses) costs damages charges or
expenses caused directly or indirectly by any delay in the delivery of the Goods nor shall any
delay in the delivery of the Goods entitle the Customer to terminate or rescind the Contract.
5.4 Delivery shall be deemed to take place and risk in the Goods shall pass:
(a)
in the case of Goods to be collected by the Customer or the Customer's agent
when the Goods are loaded on the vehicles collecting them;
(b)
in the case of Goods delivered within the UK by the Company or the
Company's agents - when the Goods are unloaded from the vehicles delivering
them at the address nominated by the Customer or the Customer's agent for
delivery;
(c)
in the case of Goods to be exported by the Company - when the Goods pass
over the ships rail as follows:-
Goods shipped FOB At the port of loading
Goods shipped C and F At the port of loading
Goods shipped CIF At the port of destination
5.5 If for any reason Customer does not accept delivery or fails to collect the Goods or
Company is unable to deliver because Customer has not provided appropriate instructions
documents licences or authorisations:
(a) risk in the Goods shall pass to the Customer;
(b) the Goods shall be deemed to have been delivered;
(c) the Company may at its option and at Customer's costs store or arrange for delivery
of the Goods.
5.6 The Customer shall provide at point of delivery and at its expense adequate and
appropriate equipment and manual labour for loading the Goods.
6. NON-DELIVERY
6.1 The quantity of any consignment of Goods as recorded by the Company upon despatch
from the Company's place of business shall be conclusive evidence of the quantity received by
the Customer on delivery unless the Customer can provide conclusive evidence proving the
contrary.
6.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the
Company's negligence) unless the Customer gives written notice to the Company of the non
delivery within five days of the date when the Goods would in the ordinary course of events
have been received.
6.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing
the Goods within a reasonable time or issuing a credit note at the pro-rata contract rate against
any invoice raised for such Goods.
7. RETENTION OF TITLE
7.1 The Goods are at the risk of the Customer from the time of delivery.
7.2 Whether or not the risk in Goods sold shall have passed to the Customer the property in
Goods sold shall be and remain in the Company until the Company has received payment in full
or any other Goods supplied by the Company to the Customer, the price for which is overdue for
payment.
7.3 Pending receipt by the Company of such payments, the Customer shall hold the Goods
for the Company as fiduciary bailee.
7.4 When payment for the Goods is overdue or the Customer suffers distress or execution to
be levied against its effects, makes an arrangement or composition with creditors or, being a
corporate body, enters into liquidation (otherwise than for the purpose of amalgamation or
reconstruction where the corporate body, as amalgamated or reconstructed, accepts in full the
Customers liability to pay for the Goods), or has a receiver appointed, for the whole or any part
of its undertaking or, being an individual, has a receiving order in bankruptcy made against him
then:
(a)
if the Customer remains in possession of the Goods, whether or not the
Customer has sold them, the Company shall be entitled to recover the Goods
from the Customer and in this respect the Customer grants the Company, its
agents or employees an irrevocable licence at any time to enter any premises
where the Goods are or may be stored in order to recover them or,
(b)
If the Customer has parted with possession of the Goods by way of sale,
whether or not the Goods have been mixed with or incorporated into other
Goods, the Customer, having sold them as fiduciary bailee, shall hold in trust
for the Company as much of the proceeds of the sale of the Goods as represents
the Customer's liability to the Company in respect of them.
8. INSTALLMENTS
8.1 Where the Goods are delivered by instalments each delivery shall be deemed to
constitute a separate enforceable Contract but the Company, may, without prejudice to any other
rights it may have, treat a failure to accept or pay for any instalment as a repudiation of the entire
Contract.
9 CLAIMS FOR DAMAGE, SHORTAGE OR LOSS
9.1 No claim for damage in transit, shortage or delivery or loss of Goods will be entertained
unless:-
(a) in the case of damage in transit or shortage of delivery, notification of the
particulars is made to the carrier concerned and to the Company within three days of the
receipt of the Goods and this is followed by a complete claim in writing to the carrier ;
(b) in the case of loss of Goods consigned to a destination within the UK written
notice is given to the Company within five days of the date of receipt of invoice; and
(c) in the case of loss of Goods consigned to a destination outside the UK notice in
writing is despatched to the Company within ten days of the expected date of arrival
9.2 Damaged Goods in respect of which any claim is made shall be preserved intact for a
period of fourteen days from the notification of the claim if located inside the UK and for a period
of forty-five days from such notification if located outside the UK within which period the carrier
and the Company shall have the right to inspect the Goods and to attend the Customers premises,
or its Agents premises, to investigate the complaint.
9.3 Any breach of this condition shall disentitle the Customer to any allowance in respect of
the claim.
9.4 In the event a valid claim is made by the Customer in accordance with the provisions of
clauses 9.1 to 9.3 above then the Company only liability shall be limited to the replacement of the
lost or damaged Goods or making good any shortfall.
10 EQUIPMENT
10.1 All tools, jigs, dies, moulds or other equipment ("Equipment"), whether or not the cost
thereof or any part of the cost thereof be quoted or otherwise included with the price of Goods,
shall remain the property of the Company unless otherwise agreed in writing by the Company.
10.2 All Equipment will be stored by the Company for a reasonable period of time and in
anticipation of further Orders, but the Company will not accept any liability for any loss or
damage (howsoever arising) thereto from whatever cause.
10.3 In the event of a Customer ordering a smaller number of Goods than that specified in the
quotation or failing to take delivery of such full quantity within the period stated in the quotation
the Company reserves the right to charge to the Customer the whole, or a proportionate part as
may be appropriate, of the cost of manufacturing the Equipment, taking into account the part of
such cost stated in the quotation. The quotation is based on the assumption that where the
Equipment (or any part thereof) is to be provided by the Customer, the same will be suitable for
the Company's machines and methods of manufacture without the Company incurring any cost
or expenses.
11 IMPROVEMENTS AND ALTERATIONS
11.1 The Company, whose policy is one of continuous improvement, reserves the right to
discontinue or make, without notice any changes in materials, dimensions and design which,
having regard to all the circumstances, it thinks reasonable or desirable provided that the
Customer shall not be required to accept Goods substantially different from those specified in
the Order.
12 ILLUSTRATIONS AND DESCRIPTIONS
12.1 All illustrations, photographs, samples and descriptions are intended as a general guide
only and shall not form part of any Contract or Order unless otherwise agreed in writing by the
Company.
13 TEST AND INSPECTION
13.1 Any test or inspection of the Goods which may be required by the Customer, other than
the Company's usual or routine test or inspection and which is agreed by the Company, shall,
unless otherwise agreed, take place at the Company's works at a time convenient to the
Company and at the Customer's expense.
13.2 Approval of the Goods following any test or inspection pursuant to this clause 13.1 shall
release the Company from any liability whatsoever.
14 INDEMNITY
14 .1 The Customer shall indemnify and keep the Company its affiliates harmless and
indemnified against all damages, losses, claims liabilities, , costs (including legal costs) and
expenses which the Company or its affiliates may suffer or incur arising out of or in connection
with work done in accordance with the Customer's specifications or instructions howsoever
arising or performance of Company's obligations under a Contract.
15 INSOLVENCY
15.1 Subject to the provisions of clause 7 above, if the Customer commits an act of
bankruptcy or becomes insolvent or shall make any composition or arrangement with its
creditors or, being a limited Company, shall go into liquidation (other than a members'
voluntary liquidation in connection with a scheme of amalgamation or reconstruction) or suffer
the appointment of a receiver of its undertakings, property or assets or any part thereof, the
Company shall thereupon be entitled to terminate the Contract forthwith by notice in writing and
without prejudice to the Company's other rights hereunder to recover from the Customer any
loss on sale of the Goods the subject of the Contract.
16 CANCELLATION OR REDUCTION
16.1 Orders placed cannot be cancelled except with the Company's consent and on terms
which will indemnify the Company against all loss, cost and expenses.
16.2 No Goods (or any part thereof) may be returned by the Customer without the
Company's consent. No Goods (or any part thereof) may be returned if custom made to the
Customer's specification, instructions or other directions.
16.3 If the Customer wishes to request return Goods it shall promptly notify in writing the
Company within two days of delivery of the relevant Goods, it shall ensure that the Goods are
stored in a safe location and will not open, use or partial use the Goods and it shall ensure that
any packaging, seals and other containers are unbroken. It is at the Company total discretion to
accept a return and credit the relevant price against a new Order of the Customer or refuse to do
so.
17 PRICE AND PAYMENT TERMS
17.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the
price set out in the Company's price list published on the date of delivery or deemed delivery.
17.2 Prices quoted are strictly net unless otherwise specified on the Company's quotation or
invoice and are exclusive of value added tax. When value added tax is imposed, it will be added
to prices at the appropriate rate(s) at the time of invoicing.
17.3 Prices are also exclusive of all costs or charges in relation to packaging, unloading,
carriage and insurance, all of which amounts the Customer shall pay in addition when it is due to
pay for the Goods.
17.4 Subject to satisfactory trade references being provided by the Customer, accounts shall
be due for payment not later than the 30th day following the date of the invoice.
17.5 Time for payment is of the essence.
17.6 No payment shall be deemed to have been received until the Company has received
cleared funds.
17.7 Failure by the Customer to make payment in accordance with the above shall entitle the
Company to suspend any outstanding deliveries or to cancel the contract at the Company's
option and without prejudice to the Company's rights to damages. The Company shall have the
right to charge interest on overdue accounts at 2% over the base rate for the time being of the
Bank of England accruing on a daily basis until payment is made, whether before or after any
judgment. The Company reserves the right to claim interest under the Late Payment of
Commercial Debts (Interest) Act 1998.
17.8 All payments due to the Company under the Contract shall become due immediately on
its termination despite any other provision.
18 CONSTRUCTION
18.1 Any Contract resulting from the Company's acceptance of a Customers Order shall be
governed by and constructed according to the laws of England.
18.2 Any dispute(s) arising out of the Contract shall be referred to arbitration in England in
accordance with the provisions of the Arbitration Act of 1996 or any statutory modifications
thereof for the time being in force.
19. ASSIGNMENT
19.1 The Company may assign the Contract or any part of it to any person, firm or company.
19.2 The Contract or any part shall not be assigned by the Customer without the prior written
consent of the Company.
20 FORCE MAJEURE
20.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or
reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it
is prevented from or delayed in carrying on of its business due to circumstances beyond the
reasonable control of the Company including, without limitation, acts of God, governmental
actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire,
explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to
either party's workforce), or restraints or delays affecting carriers or inability or delay in
obtaining supplies of adequate or suitable materials, provided that , if the event in question
continues for a continuous period in excess of twenty days, the Customer shall be entitled to
give notice in writing to the Company to terminate the Contract.
21. WARRANTY and LIMITATION OF LIABILITY
21.1 No warranty, condition or representation as to description, condition, quality or
suitability whether collateral to the Contract or otherwise is given or deemed to have been giving
or implied.
21.2 Any statutory or other warranty, whether express or implied and whether collateral to
the Contract or otherwise, is hereby excluded and extinguished, except in relation to liability for
(a) death or personal injury resulting from the Company's negligence; or
(b) under section 2(3) of the Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to
exclude its liability; or
(d) for fraudulent misrepresentation
21.3 Without prejudice to the foregoing, the Company shall repair or replace any Goods or
products of the Company's own manufacture which during the 12 months immediately following
the delivery of the Goods or completion of the Contract or the stated shelf life of the product
where that is shorter as the case may be, are found to be defective due to faulty workmanship or
materials, exclusive of normal wear and tear, misuse and neglect.
21.4 Within 14 days of the discovery of the alleged defect the Customer shall return the
Goods properly packed to the Company's works, unless otherwise arranged.
21.5 If necessary, the Customer will allow authorised representatives of the Company to
inspect the allegedly faulty Goods on the Customer's premises at a mutually convenient time.
21.6. If the defect is due to faulty workmanship or materials the Company shall, at its own
option, repair or replace the faulty Goods.
21.7 The Company shall not be liable to repair or replace any Goods reported as faulty if;
(a) The Customer makes any further use of such Goods after giving notice to the
Company that they are defective; or
(b) the defect arises because the Customer has failed to follow the Company's oral
and written instructions as to storage, installation, commissioning, use or maintenance
of the Goods; or
(c) the Customer alters or repairs such Goods without the written consent of the
Company
21.8 Subject to condition 21.2 above, the Company's total liability in contract, tort (including
negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in
connection with the performance or contemplated performance of the Contract shall be limited to
the Contract price.
21.9 (Save as provided in these Conditions of Contract and save as in relation to death or
personal injury resulting from the negligence of) the Company, its servants and agents shall not
in any event be liable for any (and in each case whether direct indirect or consequential) injury,
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loss or damage, pure economic loss, loss of business, depletion of goodwill, loss of profit or
expenses of any kind whatsoever, howsoever caused, arising in connection with the Goods
supplied by the Company.
22. GENERAL
22.1 Each right or remedy of the Company under the Contract is without prejudice to
any other right or remedy of the Company whether under the Contract or not.
22.2 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.
22.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the
Contract shall not be construed as a waiver of any of its rights under the Contract.
22.4 Any waiver by the Company of any breach of, or any default under, any provision of the
Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and
shall in no way affect the other terms of the Contract.
22.5 The parties to the Contract do not intend that any that any term of the Contract shall be
enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is
not a party to it.
23. COMMUNICATIONS
23.1 All communications between the parties about the Contract shall be in writing and
delivered by hand or sent by pre-paid first class post or sent by fax to:
(a) (in the case of communications to the Company) to its registered office or such
changed address as shall be notified to the Customer
(b) (in the case of communications to the Customer) to the registered office (if it is a
company) or (in any other case) to any address of the Customer set out in any document
which forms part of the Contract or such other address as shall be notified to the
Company by the Customer.
23.2 Communications shall be deemed to have been received:
(a) if sent pre-paid first class post, two days (excluding Saturdays, Sundays and bank
and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax on a working day before 4pm, at the time of transmission and
otherwise on the next working day.
23.3 Communications addressed to the Company shall be marked for the attention of the
Company Secretary
22. ENTIRE AGREEMENT
22.1 This Contract constitutes the whole agreement between the parties and supersedes all
previous agreements between the parties relating to its subject matter.
22.2 Each party acknowledges that , in entering into this Contract, it has not relied on, and
shall have no right or remedy (other than for breach of contract) in respect of, any statement,
representation, assurance or warranty (whether made negligently or innocently) other than as
expressly set out in this Contract.
22.3 Nothing in this clause shall limit or exclude any liability for fraud.
Terms updated 2007