Standard Conditions for Business Sale of Goods
1 Formation of contract
1.1 Any order sent to the Seller by the Purchaser shall be accepted entirely at the discretion of the Seller, and, if so accepted, will only be accepted upon these conditions (hereafter referred to as the “Conditions”) and by means of the Seller’s standard order acknowledgment form.
1.2 Each order which is so accepted shall constitute an individual legally binding contract between the Seller and the Purchaser and such contract is hereafter referred to in these Conditions as an “Order”.
1.3 These Conditions shall override any contrary different or additional terms or conditions (if any) contained on or referred to in an order form or other documents or correspondence from the Purchaser, and no addition alteration or substitution of these terms will bind the Seller or form part of any Order unless they are expressly accepted in writing by a person authorised to sign on the Seller’s behalf. The Purchaser waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Purchaser that is inconsistent with these Conditions.
2 Specification
2.1 All goods supplied by the Seller shall be in accordance with (i) the current edition of the relevant brochures, product literature, material safety data sheet or product description leaflet as published by the Seller from time to time (copies of which are available from the Seller upon request) and (ii) those further specifications or descriptions (if any) expressly listed or set out on the face of the Order. No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into the Order.
2.2 Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the goods referred to in them and shall not have any contractual force.
2.3 To the extent that the goods are to be manufactured in accordance with a specification supplied by the Purchaser, the Purchaser shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Seller's use of such specification.
2.4 The Seller reserves the right to amend the specification of any goods that are the subject of an Order if required by any applicable statutory or regulatory requirements.
3 Acceptance
The Purchaser shall be deemed to have accepted all goods upon their delivery to the address specified in the Order.
4 Delivery and risk
4.1 Unless otherwise stated in the Order, the price quoted excludes delivery to the address specified in the Order.
4.2 Any time or date for delivery given by the Seller is given in good faith, but is an estimate only.
4.3 Unless otherwise stated in the Order, risk in the goods shall pass to the Purchaser on an EXW basis (as defined within the Incoterms 2020).
5 Title and payment
5.1 The Seller warrants that (except in relation to intellectual property rights of third parties as referred to in Condition 5.3) the Seller has good title to the goods and that (pursuant to s.12(3) of the Sale of Goods Act 1979, or s.2(3) of the Supply of Goods and Services Act 1982, whichever Act applies to the Order) it will transfer such title as it may have in the goods to the Purchaser pursuant to Condition 5.5.
5.2 The Seller warrants that it is not aware of any actual or alleged infringements of any intellectual property rights of third parties which relate to the goods other than those (if any) which the Seller has disclosed to the Purchaser prior to acceptance of the Order.
5.3 THE SELLER SHALL HAVE NO LIABILITY TO THE PURCHASER (OTHER THAN AS PROVIDED IN CONDITION 9) IN THE EVENT THAT THE GOODS TO BE SUPPLIED UNDER THE ORDER INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY (INCLUDING WITHOUT LIMITATION BY REASON OF THEIR POSSESSION, SALE OR USE, WHETHER ALONE OR IN ASSOCIATION OR COMBINATION WITH ANY OTHER GOODS); THE SELLER GIVES NO WARRANTY THAT THE GOODS TO BE SUPPLIED UNDER THE ORDER WILL NOT INFRINGE AS AFORESAID, AND ALL CONDITIONS, WARRANTIES, STIPULATIONS OR OTHER STATEMENTS WHATSOEVER RELATING TO SUCH INFRINGEMENT OR ALLEGED INFRINGEMENT (IF ANY), WHETHER EXPRESS OR IMPLIED, BY STATUTE, AT COMMON LAW OR OTHERWISE HOWSOEVER, ARE HEREBY EXCLUDED.
5.4 Unless otherwise stated in the Order, payment of the price of the goods comprised in each consignment delivered pursuant to an Order shall become due 30 days following the date of the relevant invoice.
5.5 Title to the goods comprised in each consignment shall not pass to the Purchaser until the Purchaser has paid their price to the Seller, but, even though title has not passed, the Seller shall be entitled to sue for their price once its payment has become due.
6 Resale
If the Seller shall be unable, through circumstances beyond its control (including without limitation lack of shipping instructions from the Purchaser), to despatch or deliver the goods within 14 days after notification to the Purchaser or its agent that the goods are ready for delivery, the Seller shall, at its absolute discretion, be entitled to cancel the relevant order and resell the goods. In the event that the goods are sold below the value set out in the relevant Order, the Seller may invoice the Purchaser for the difference.
7 Force majeure
7.1 The Seller shall not be under any liability for any failure to perform any of its obligations under the Order due to Force Majeure. Following notification by the Seller to the Purchaser of such cause, the Seller shall be allowed a reasonable extension of time for the performance of its obligations.
7.2 For the purposes of this Condition, Force Majeure means fire, explosion, flood, lightning, Act of God, act of terrorism, war, epidemic, pandemic, rebellion, riot, sabotage, official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the party affected thereby.
8 Guarantee
8.1 For goods which are manufactured by the Seller or which bear one of the Seller’s trade marks, the Seller grants the following guarantee:
8.1.1 The Seller shall free of charge either repair (where practicable) or, at its option, replace defective goods where the defects appear under proper use within 12 months from the date of delivery, PROVIDED THAT:
(a) notice in writing of the defects complained of shall be given to the Seller immediately following their receipt;
(b) such defects shall be found to the Seller’s satisfaction to have arisen solely from the Seller’s faulty design, workmanship or materials; and
(c) the defective goods shall be returned to the Seller’s factory at the Purchaser’s expense if so requested by the Seller.
8.1.2 Any repaired or replaced goods shall be redelivered by the Seller free of charge to the original point of delivery but otherwise in accordance with and subject to these Conditions of Sale save that the period of 12 months referred to in Condition 8.1.1 shall be replaced by the then unexpired portion of that period only.
8.1.3 Alternatively to Condition 8.1.1, the Seller shall be entitled at its absolute discretion to refund the price of the defective goods in the event that such price shall already have been paid by the Purchaser to the Seller, or, if such price has not been so paid, to relieve the Purchaser of all obligation to pay the same by the issue of a credit note in favour of the Purchaser in the amount of such price.
8.2 In respect of all goods manufactured and supplied to the Seller by third parties the Seller will pass on to the Purchaser (in so far as possible) the benefit of any warranty given to the Seller by such third parties and will (on request) supply to the Purchaser details of the terms and conditions of such warranty and copies of any relevant product information sheets, technical data sheets or product leaflets issued by such third parties and the Purchaser shall be solely responsible to the entire exclusion of the Seller for complying with all of these.
8.3 THE SELLER’S LIABILITY UNDER THIS CONDITION SHALL (SUBJECT TO CONDITION 13) BE TO THE EXCLUSION OF ALL OTHER LIABILITY TO THE PURCHASER WHETHER CONTRACTUAL, TORTIOUS OR OTHERWISE FOR DEFECTS IN THE GOODS OR FOR ANY LOSS OR DAMAGE TO OR CAUSED BY THE GOODS, AND (SUBJECT TO CONDITION 13) ALL OTHER CONDITIONS, WARRANTIES, STIPULATIONS OR OTHER STATEMENTS WHATSOEVER CONCERNING THE GOODS, WHETHER EXPRESS OR IMPLIED, BY STATUTE, AT COMMON LAW OR OTHERWISE HOWSOEVER, ARE HEREBY EXCLUDED; IN PARTICULAR (BUT WITHOUT LIMITATION OF THE FOREGOING) THE SELLER GRANTS NO WARRANTIES REGARDING THE FITNESS FOR PURPOSE, PERFORMANCE, USE, NATURE OR QUALITY OF THE GOODS, WHETHER EXPRESS OR IMPLIED, BY STATUTE, AT COMMON LAW OR OTHERWISE HOWSOEVER.
9 Intellectual property rights
9.1 In the event that any claim is made against the Purchaser for infringement of Intellectual Property Rights arising directly from the use or sale by the Purchaser of the goods, the Seller at its own expense shall conduct any ensuing litigation and all negotiations for a settlement of the claim. The Seller will bear the costs of any payment (either by way of a lump sum or a continuing royalty payment) made in settlement, or as a result of an award in a judgment against the Seller in the event of litigation.
9.2 The benefit of Condition 9.1 is granted to the Purchaser by the Seller only in the event that the Purchaser shall give the Seller the earliest possible notice in writing of any such claim being made or action threatened or brought against it, shall make no admission of liability or take any other action in connection therewith, shall permit the Seller to have the conduct of the claim pursuant to Condition 9.1, and shall (at the Seller’s expense) give all reasonable information, co-operation and assistance to the Seller (including without limitation lending its name to proceedings) in relation to the conduct of the claim. In addition, if it is made a condition of any settlement made by the Seller, or judgment awarded against the Purchaser, pursuant to Condition 9.1, the Purchaser shall return or destroy, as applicable, all infringing goods still under its control subject to a refund by the Seller of any payment for such goods already made less a reasonable allowance for depreciation of the goods by reason of their use (if any) by the Purchaser prior to their return or destruction as aforesaid.
9.3 The provisions of Condition 9.1 shall not apply to any infringement caused by the Seller having followed a design or instruction furnished or given by the Purchaser nor to any use of the goods in a manner or for a purpose which shall have been specifically prohibited in writing by the Seller, nor to any infringement which is due to the use of such goods in association or combination with any other product.
9.4 Any design or instruction furnished or given by the Purchaser shall not be such as will cause the Seller to infringe any Intellectual Property Rights.
9.5 For the purposes of this Condition, the capitalised term “Intellectual Property Rights” means Patents, Registered Designs, Unregistered Designs, Registered Trademarks and Copyright only, having effect in the United Kingdom.
9.6 The foregoing states the Seller’s entire liability to the Purchaser and the Purchaser’s sole and exclusive remedies against the Seller in connection with claims based on or resulting from the infringement of Intellectual Property Rights, of any kind whatsoever, of third parties.
9.7 Where the Purchaser is acting as an appointed distributor or reseller of the Seller, the Seller grants to the Purchaser a non-exclusive, royalty free licence to use its registered trade marks within the territory in which the Purchaser is domiciled or incorporated in the promotion, advertisement and sale of the goods that are the subject of the Order. This licence may be immediately revoked by the Seller at any time upon giving the Purchaser notice in writing. The Purchaser acknowledges and agrees that all rights in the licensed trade marks shall remain in the Seller, and that the Purchaser has and will acquire no right in them. All representations of the trade marks that the Purchaser intends to use shall be submitted to the Seller for written approval before use. The Purchaser shall not sub-license, transfer or otherwise deal with the rights of use of the trade marks granted under this Condition. The Purchaser shall not do, or omit to do, anything in its use of the trade marks that could adversely affect their validity or reputation.
9.8 The Purchaser shall comply with all relevant laws and regulations, particularly in respect of the Seller’s Intellectual Property Rights and, for the avoidance of any doubt, the Purchaser shall make no attempt, either directly or indirectly, to reverse engineer or copy any Intellectual Property Rights of the Seller.
10 Confidentiality
Both the Seller and the Purchaser shall each keep confidential and shall not without the prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between them relating to the goods and the Order.
11 Economic loss
Subject to Condition 13, and notwithstanding anything contained in these Conditions (other than Condition 13) or the Order, IN NO CIRCUMSTANCES SHALL THE SELLER BE LIABLE, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE HOWSOEVER, AND WHATEVER THE CAUSE THEREOF (i) FOR ANY LOSS OF PROFIT, BUSINESS, CONTRACTS, REVENUES, OR ANTICIPATED SAVINGS, OR DEPLETION OF GOODWILL, OR (ii) FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE OF ANY NATURE WHATSOEVER.
12 Limitation of liability
Subject to Condition 13, and notwithstanding anything contained in these Conditions (other than Condition 13) or the Order, THE SELLER’S LIABILITY TO THE PURCHASER IN RESPECT OF THE ORDER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR HOWSOEVER OTHERWISE ARISING, SHALL BE LIMITED TO 100 PER CENT OF THE PRICE OF THE GOODS SPECIFIED IN THE ORDER.
5.6 The prices set out in the Order:
(a) excludes amounts in respect of value added tax (VAT), which the Purchaser shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport, which shall be invoiced to the Purchaser.
13 Unfair Contract Terms Act 1977
13.1 If and to the extent that s.6 and/or s.7(3A) of the Unfair Contract Terms Act 1977 applies to the Order, no provision of these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for breach of the express warranties contained in Condition 5, or for breach of the applicable warranties as to title and quiet possession implied into the terms and conditions of the Order by s.12(1) of the Sale of Goods Act 1979, or s.2(1) of the Supply of Goods and Services Act 1982, whichever Act applies to the Order.
13.2 Where the Purchaser is a natural person and if and to the extent that s.2(1) of the Unfair Contract Terms Act 1977 applies to the Order, nothing in these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for death or personal injury caused to the Purchaser by reason of the negligence of the Seller or of its servants, employees or agents.
13.3 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of these Conditions is deemed deleted under this Condition the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14 Applicable law
The Order and any dispute arising out of or in connection with it (including non-contractual disputes) shall be governed by the law of England and the parties agree to submit to the exclusive jurisdiction of the English courts.