1.1. These terms and conditions govern the agreement between Schoeller Allibert Limited (SA) and you (the Customer) in relation to the supply of goods to you by SA (the agreement).
1.2. The order form, any order acknowledgment, SA’s general terms and conditions and these terms and conditions together form the contract between the parties and are binding on the Customer.
1.3. If there is any inconsistency between any of the provisions in these terms and conditions and SA’s general terms and conditions, the provisions in these terms and conditions shall prevail.
1.4. No oral warranties or representations shall bind SA.
1.5. The Customer acknowledges that it does not rely on any representation and/or warranty which has not been made in accordance with these conditions.
2.1. The Customer shall be responsible for the accuracy of an order and for giving SA any information necessary for SA to perform the agreement.
2.2. SA shall have the right to refuse to accept any orders placed for the goods.
2.3. The agreement between SA and the Customer shall come into effect on SA's acceptance of the Customer's order by issuing an acceptance confirmation or when SA begin delivering the goods, if earlier.
2.4. The Customer has no right to cancel its order under this agreement, unless SA gives its prior written consent (in its sole discretion).
3.1. Any estimates, drawings, diagrams, brochures, samples, models, weights, dimensions, websites and/or similar information or materials (the Information) are given for indicative purposes only and are not binding on SA.
3.2. Technical description and data are subject to alteration by SA without notice.
3.3. The Customer confirms and agrees that it has not relied upon the details and information contained on SA's website unless it has sought and obtained written confirmation from SA of their accuracy.
3.4. The Customer is responsible for checking that the order is accurate and satisfying itself that the goods are suitable for their intended use.
3.5. SA reserves the right to make changes to the specification of the goods as required from time to time by law, applicable safety requirements or manufacturing requirements.
4. Price and payment
4.1. Unless otherwise agreed in writing, all prices are ex works, exclusive of Value Added Tax and packaging. All prices are based on the cost factors, taxes, import duties, rates of exchange etc. prevailing at the time of the offer or quotation or at the time of the confirmation.
4.2. The price of the goods shall be as shown on SA’s website at the time of the acceptance of the Customers order.
4.3. SA may only increase its prices in relation to the goods which SA has already agreed to supply where the increase is to take account of increases in costs, expenses and/or materials suffered by SA. The customer will be informed in writing by SA of any increases of prices for goods and will be given the option to cancel their order within 7 days of being given notice of any increase.
4.4. The Customer shall pay all sums due to SA under this agreement without any set-off, deduction, counterclaim and/or other withholding of monies.
4.5. Payment shall be made either by card payment at the point of order or on payment terms that have been agreed with the Customer in advance.
4.6. Payment is deemed to be effected after SA has received notification that its account has been credited.
4.7. If the Customer fails to make any payment in full on the due date SA shall have the right to charge any reasonable additional administration costs and interest at the rate of 1.5% above the base rate from time to time.
5.1. Delivery shall be at the date and time or within the period mentioned in the confirmation order and to the United Kingdom only. Dates for delivery are estimates only and are not guaranteed. Time is not of the essence for delivery.
5.2. The Customer shall have no right to reject the goods and shall have no right to rescind for late delivery and/or performance unless the due date for delivery has been exceeded by at least 60 days and the Customer has served on SA written notice requiring the agreement to be performed and giving SA not less than 14 days in which to do so and the notice has not been complied with.
5.3. In accordance with normal transport practices all goods will be delivered to the relevant goods inwards department or to reception on the ground floor. Off-loading facilities must be provided by the Customer.
5.4. If the Customer is unable to take delivery of the goods on the agreed date, then SA has the right, after consultation with the Customer, to set a new date for delivery and revise the price or terminate the agreement.
5.5. SA may comply with reasonable requests by the Customer for postponement of delivery of the goods, but shall be under no obligation to do so.
5.6. Where delivery of the goods is postponed at the Customer’s request then the Customer shall pay all costs and expenses of SA incurred as a result including reasonable charges for storage, transportation and insurance. In addition the Customer shall be obliged to pay for the goods as if delivery and performance had not been postponed.
5.7. Delivery charges and liabilities shall be ex works at the choice of SA at the point of manufacturing or distribution, unless otherwise stated in the confirmation order. Trade terms have to be interpreted according to Incoterms, latest edition. If and insofar as the Incoterms deviate from the confirmation email, the latter shall prevail.
6. Risk and Title
6.1. Risk in the goods shall pass to the Customer at the time of delivery. Delivery shall be deemed to occur at the time when the goods arrive at the place of delivery.
6.2. The title to all goods delivered and to be delivered shall remain with SA and SA reserves the right of disposal, until payment shall have been received in full of all of the Customer's debts due or to become due to SA under this agreement or any other agreement between the parties.
6.3. Until title to the goods has passed to the Customer, the Customer shall not be permitted to create any charge or security right on the goods or grant any other right in the goods to any third party, save within the Customer's normal course of business.
6.4. If the Customer transfers the goods to a third party before title to the goods has passed to the Customer, the Customer shall hold any proceeds it receives from the third party on trust for the full and exclusive benefit of SA.
6.5. The Customer is required to store and insure the goods, the title to which remains with SA, with appropriate care and identifiably marked as being the property of SA.
6.6. If payment by the Customer is overdue in whole or in part, or upon the commencement of any action or proceeding in which the Customer's solvency is involved, SA may (without prejudice to any of its other rights) recover at the Customer's risk and account all goods supplied by it, the title to which has remained with SA and which are still at the Customer's premises.
7.1. Complaints about quantities and defects which could have been discovered during normal careful inspection shall be made known to SA in writing within eight days after delivery.
7.2. Complaints about defects which could not have been discovered during normal careful inspection shall be made known to SA in writing within eight days after discovery.
7.3. Any defective goods must be returned to SA for inspection if requested by SA before SA will have any liability for defective goods.
7.4. Returns will only be accepted by SA after prior approval in writing. Complaints shall never entitle the Customer to postpone or set-off payment of any undisputed amounts.
7.5. If SA finds that complaints are justified, it will, at its sole option:
7.5.1. Repair the defects;
7.5.2. Deliver replacement goods against return of the defective goods; or
7.5.3. Terminate the agreement and refund the price of the defective goods.
7.6. SA shall have no liability to the Customer under this clause if:
7.6.1. Claims have not been made in writing and within the requisite periods;
7.6.2. SA has not been given the opportunity to examine the complaint at the place the defect has been discovered;
7.6.3. The Customer has not paid in full for the relevant goods on the due date for payment;
7.6.4. The goods continue to be used;
7.6.5. The goods have been subject to fair wear and tear, misuse, defective maintenance, alteration or modification; and/or
7.6.6. Delivery of the goods has taken place more than 1 year previously.
8. Liability and Indemnification
8.1. SA shall have no liability for any defect in the goods caused or contributed to as a result of the goods being handled by customers of the Customer.
8.2. SA shall have no liability for defective goods where the defect has been caused or contributed to by the Customer.
8.3. SA shall have no liability to the Customer for defective goods, goods not dispatched or goods damaged or lost in transit unless the event is notified to SA within the appropriate time limit set out in this agreement at clause 7.
8.4. SA shall have no liability for damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of defective goods after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
8.5. The Customer shall give SA a reasonable opportunity to remedy any matter for which SA is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so SA shall have no liability to the Customer for that matter.
8.6. SA shall have no liability for any matters which are outside its reasonable control.
8.7. SA shall have no Liability to the Customer for any:-
8.7.1. loss of profits and/or damage to goodwill;
8.7.2. economic and/or other similar losses;
8.7.3. special damages and indirect losses;
8.7.4. business interruption, loss of business, contracts, opportunity and/or production; and/or
8.7.5. indirect or consequential losses.
8.8. The Customer shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer.
8.9. SA’s total liability to the Customer under this agreement shall not exceed the total price paid by the Customer under this agreement in the preceding 12 month period.
8.10. Each of the limitations and/or exclusions in this agreement shall be deemed to be repeated and apply as a separate provision for each of:
8.10.1. Liability for breach of contract and/or under this agreement;
8.10.2. Liability in tort (including negligence);
8.10.3. Liability for breach of statutory duty; and
8.10.4. Liability for breach of Common Law.
except clause 8.9above which shall apply once only in respect of all the said types of liability.
8.11. Nothing in this agreement shall exclude or limit the liability of SA for death or personal injury due to its negligence or any liability which is due to SA’s fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
8.12. All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
8.13. Nothing in this agreement shall exclude or limit any statutory rights of the Customer which may not be excluded or limited due to the Customer acting as a consumer. Any provision which would be void under any consumer protection legislation or other legislation shall to that extent, have no force or effect.
9. Intellectual Property Rights
9.1. The title to, ownership of and intellectual property rights with respect to information, specifications, stereo-types, moulds and tools provided by or made together with SA (together the "Material") shall remain or vested in SA.
9.2. The Customer shall treat all Material as strictly confidential. SA hereby provides a revocable, non-exclusive, non-assignable and non-sublicenseable licence to the Customer only to use the Material during the agreement in connection with the normal use of the goods, services and advice provided by SA. The Customer shall not without SA's prior written consent copy or provide the Material, or any associated products or services, to third parties.
10.1. SA is entitled, in its sole discretion, to suspend the performance of the agreement, cancel and/or terminate the agreement in whole or in part if:
10.1.1. SA is in a situation of Force Majeure (as set out at clause 11);
10.1.2. The Customer fails to make any payment in full by the due date;
10.1.3. The Customer ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim order under Section 252 Insolvency Act 1986 or has a Bankruptcy Petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction
10.2. Any suspension or termination by SA shall be with immediate effect, without any notice of default or remedy period having to be given, without judicial intervention, without SA being liable for any costs or damages to the Customer or a third party and without prejudice to SA's other rights and Customer's obligations to compensate SA for costs and damages incurred.
10.3. Any suspension or termination shall, unless specifically agreed otherwise in writing, not result in SA having to pay back amounts received and shall result in any amounts to be paid by Customer becoming immediately due and payable.
11. Force Majeure
11.1. A force majeure situation includes an event of war, civil unrest, riots, fire or other disasters, shortage of raw materials, supplies, additives or fuel, factory breakdowns, strikes, lock-outs, government intervention, transport breakdowns also due to adverse weather conditions or other conditions, irrespective of whether any of these happen in SA's own factories or at SA's suppliers or transport companies, and in any other circumstances beyond SA's control, as well as in the event of a change in circumstances to such extent that proper or further performance cannot reasonably be expected from SA (a "Force Majeure").
11.2. If SA is affected by a Force Majeure event then the time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
12.1. No waiver by SA of any breach of this agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
12.2. If any provision of this agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this agreement and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
12.3. The Customer shall not assign its interest in the agreement (or any part) without the written consent of SA. SA may assign, transfer, mortgage, charge or deal in any other manner any or all of its rights and obligations under this agreement.
12.4. All third party rights are excluded and no third party shall have any right to enforce this agreement. This shall not apply to members of SA’s group from time to time who shall, subject to SA’s consent, have the right to enforce this agreement as if they were SA. Any rights of a third party to enforce this agreement may be varied and/or extinguished by agreement between the parties to this agreement without the consent of any such third party.
12.5. No variation of this agreement shall be effective unless it is made in writing by SA.
12.6. For the purposes of these terms and conditions "in writing" shall include by e-mail (or other means of electronic communication) and fax.
12.7. This agreement is governed by and interpreted in accordance with English law and the parties agree to submit to the non-exclusive jurisdiction of the English courts.
If you have any questions or comments, please contact:
Schoeller Allibert Limited
Quinton Business Park
Birmingham B32 1AF
Phone: 01606 561955