‘Buyer’ means the person whose Order for Goods and/or Services is accepted by the Seller.
‘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 sale and purchase of the Goods and/or Services between the Seller and the Buyer as set out in the Order and subject to these Conditions.
‘Goods’ means goods which the Seller is to supply to the Buyer as set out in the Order in accordance with these Conditions.
‘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.
‘Order’ means any Written order of the Buyer which is accepted by the Seller. ‘Seller’ means CHELSOM LIMITED registered in England under number 626933 and whose registered office is situated at Heritage House, Clifton Road, Blackpool FY4 4QA.
‘Seller Materials’ means all materials, equipment, documents and other property of the Seller.
‘Services’ means the services which the Seller is to supply to the Buyer as set out in the Order in accordance with these Conditions.
‘Writing’ subject to clause 15.1 includes facsimile and comparable means of written communication including electronic mail.
1.2.Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the time of contract.
1.3.The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4.All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
1.5.Any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.6.References to clauses are to the clauses of these Conditions.
Basis of the sale
2.1.The Seller shall sell and the Buyer shall purchase the Goods and/or the Services in accordance with any Order, subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such Order is made or purported to be made, by the Buyer or which are implied by trade, custom, practice or course of dealing.
2.2.No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller, and no condition, warranty or other term of any order or acceptance of a quotation submitted by the Buyer or which the Buyer may seek to impose shall apply to the Seller.
2.3.The Seller’s employees or agents are not authorised to make any representations concerning the Goods and/or the Services unless confirmed by the Seller in Writing. The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.
2.4.Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted on entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5.Any samples, drawings, descriptive matter or advertising issued by the Seller and any illustrations or descriptions of the Services contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6.Any typographical, clerical or other error or omission in any sales literature, catalogue, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without notice to the Buyer and without any liability on the part of the Seller.
2.7.In the event of any conflict between the provisions of an order submitted by the Buyer and the provisions of any quotation or order acknowledgement issued by the Seller or these Conditions, the provisions of the quotation, order acknowledgement or these Conditions (as applicable) shall prevail.
Orders and Specifications
3.1.An order submitted by the Buyer constitutes an offer by the Buyer to purchase Goods and/or Services in accordance with these Conditions. No order submitted by the Buyer (whether or not submitted pursuant to a quotation issued by the Seller) shall be deemed to be accepted by the Seller unless and until:
3.1.1.it is confirmed in Writing by the Seller’s authorised representative; or
3.1.2. The Seller delivers the Goods (or any instalment)and/or commences the supply of the Services, whichever occurs first, on which date the Contract shall come into existence. Any quotation given by the Seller shall not constitute an offer, is only valid for a period of 45 days from its date of issue and may be withdrawn by the Seller at any time before the Contract is formed.
3.2.The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, for giving the Seller any necessary information relating to the Goods and/ or Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms and for providing any materials the Seller may reasonably require to supply the Services.
3.3.The quantity, quality and description of and any specification for the Goods shall be those set out in the Order (and the Buyer must satisfy itself as to specification, quality, description and fitness for purpose of the Goods).
3.4.The Seller shall provide the Services (if any) to the Buyer in accordance with the Order in all material respects.
3.5.If the Goods are to be manufactured, any process is to be applied to the Goods or the Services are to be provided by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all liabilities, losses, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other party which results from the Seller’s use of the Buyer’s specification.
3.6.Notwithstanding clause 9.1, the Seller reserves the right to make any changes in the specification of the Goods and/or the Services which are required to conform with any applicable law or safety requirement, statutory or European Union requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.7.No Order may be cancelled by the Buyer except with the agreement in Writing of the Seller and then only on terms that the Buyer shall indemnify the Seller in full against all liabilities, losses (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.
3.8.The Goods will on delivery comply with the Electrical Equipment Safety Regulations in accordance with BS EN 60598-1:2015 and with the applicable BS EN 60598 Part 2 standard unless local regulations specify otherwise.
4.1.The Buyer shall:
4.1.1.ensure that the terms of the Order and (if submitted by the Buyer) of any specification of Goods and/or Services are complete and accurate;
4.1.2.co-operate with the Seller in all matters relating to the Goods and Services;
4.1.3.provide the Seller, its employees, agents, consultants and subcontractors, with access to such premises, office accommodation and other facilities as reasonably required by the Seller to provide the Goods and/or the Services;
4.1.4.provide the Seller with such information and materials as the Seller may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
4.1.5.prepare the Buyer’s premises for the supply of the Services;
4.1.6.obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.7.Keep and maintain all Seller Materials at the Buyer’s premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller’s written instructions or other authorisation.
4.2.If the Seller’s performance of any of its obligations in respect of the Goods and/or Services is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):
4.2.1.the Seller shall without limiting its other rights or remedies have the right to suspend performance of the relevant obligations until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Seller’s performance of any of its obligations;
4.2.2.the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as permitted in this clause 4; and
4.2.3.the Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.
Price of the Goods and/or Services
5.1.The price of the Goods and/or Services shall be 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 acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid for 45 days provided that the Seller has not previously withdrawn it.
5.2.The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5.3.Except as otherwise stated under the terms of any Written quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex-works basis,and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
5.4.The price is exclusive of any applicable value added tax (and any similar sales tax), which the Buyer shall be additionally liable to pay to the Seller.
5.5.Should any duty, tax, levy or any other payment whatsoever be imposed by the European Union, or any of its member’s national government, or any other government body, relating to the Goods and/or Services before their delivery, the Buyer shall bear the burden of such duty, tax, or other payment and the costs arising therefrom.
Terms of Payment
6.1.The Seller shall at its option be entitled to require the Buyer to pay a deposit of all or part of the price of the Goods and/or Services in advance.
6.2.Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall at its option be entitled to submit an invoice for payment from the Buyer for the price of the Goods and/or Services upon the occurrence of any one of the following:
6.3.Unless otherwise specified by the Seller to the Buyer prior to or at the time of submission of an invoice pursuant to this clause 6 the Buyer shall pay the price of the Goods and/or Services (less any discount to which the Buyer is entitled and less any deposit already paid, but without any other deduction) within 30 days of the date of the Seller’s invoice and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in any Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.4.If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
6.4.1.cancel the Contract; or
6.4.2.suspend any further deliveries to the Buyer; and/or
6.4.3.suspend the provision of the Services or any part of them; and
6.4.4.appropriate any payment made by the Buyer to such of the Goods and or Services(or the goods and/or services supplied under any other contact between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
6.4.5.charge the Buyer interest(both before and after any judgment)on the amount unpaid from the due date for payment,at the rate of 8 percent per annum above the HSBC Bank base lending rate accruing on a daily basis until payment is made or under the Late Payment of Commercial Debts (Interest) Act 1998.
7.1.Delivery of 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.
7.2.Delivery of Goods shall be completed:
1.on the completion of loading of the Goods at the Seller’s premises if the Buyer is collecting the Goods; or
2.on arrival at the agreed delivery location if the parties have agreed that the Seller is delivering and the Goods; or
7.2.3.where clause 12 (Export Terms) applies, in accordance with the relevant Incoterm agreed by the parties.
7.3.Any dates quoted for delivery of the Goods and/or provision of the Services are approximate only and to the extent permitted by applicable law the Seller shall not be liable for any damage or inconvenience due to the delay in delivery of the Goods or performance of the Services howsoever caused. Time for delivery of the Goods and/or performance of the Services shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Goods may be delivered and the Services performed by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
7.4.Where Goods are to be delivered in instalments, each delivery shall constitute a separate contract to which all of these Conditions shall apply and failure by the Seller to deliver 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 instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.5.If the Seller fails to deliver the Goods (or any instalment) or provide the Services (or any part of them) 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 and/or services to replace those not delivered over the price of the Goods and/or Services.
7.6.If the Buyer fails to take delivery of Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may at the Seller’s option:
7.6.1.store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.6.2.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.
Risk and Property
8.1.Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1.in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2.in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
8.2.Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, Goods supplied under the Contract shall remain the sole and absolute property of the Seller and property and title in the Goods shall not pass to the Buyer until:
8.2.1.the Seller has received in cash or cleared funds payment in full of the price of the Goods and in respect of all other goods agreed to be sold by the Seller to the Buyer for which payment is then due (including VAT and interest thereon); or
8.2.2.the Seller notifies the Buyer in writing that title in the Goods has passed to the Buyer.
8.3.Until such time as the property and title in the Goods passes to the Buyer, the Buyer shall:
8.3.1.keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured (for their full price) and identified as the Seller’s property;
8.3.2.not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3.maintain the Goods in satisfactory condition having regard to the nature of the Goods;
8.3.5.give the Seller such information relating to the location and condition of the Goods as the Seller may require from time to time.
8.4.Subject to clause 8.5, the Buyer shall be entitled, before the time at which property and title would ordinarily pass in accordance with clause 8.2, to resell with good title or use the Goods in the ordinary course of its business (but not otherwise). If the Buyer resells the Goods before that time, it shall do so as principal (and not as the Seller’s agent), title to the Goods shall pass from the
Seller to the Buyer immediately before the time when title to the Goods passes from the Buyer to its purchaser.
8.5.If, before property and title in the Goods passes to the Buyer, the Buyer becomes subject to any of the events set out in clause 10.1, then, without limiting any other right or remedy the Seller may have:
8.5.1.the Buyer’s right to resell or use the Goods in the ordinary course of its business ceases immediately; and
8.5.2.the Seller may at any time: (a) require the Buyer to deliver up all Goods in its possession which have not been resold or irrevocably incorporated into another product; and (b) if the Buyer fails to do so promptly, enter any of the Buyer’s premises or premises of any third party where the Goods are, or are reasonably likely to be, stored in order to recover them.
8.6.The Buyer shall not be entitled to pledge, create a lien over, 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 monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.7.On termination of the Contract, the Seller’s rights contained in this clause 8 shall remain in effect.
WARRANTIES AND LIMITATION OF LIABILITY
9.1.SUBJECT TO THE CONDITIONS SET OUT BELOW, THE SELLER WARRANTS THAT THE GOODS WILL CORRESPOND WITH THEIR DESCRIPTION IN
ALL MATERIAL RESPECTS ON DELIVERY TO THE BUYER AND, UNLESS OTHERWISE STATED, BE FREE FROM MATERIAL DEFECTS IN MATERIAL AND WORKMANSHIP ON DELIVERY TO THE BUYER AND FOR A PERIOD OF TWO YEARS FROM THE DATE OF DELIVERY TO THE BUYER.
9.2.The above warranty is given by the Seller subject to the following conditions:
9.2.1.the Seller shall not be liable for the Goods’ failure to comply with the above warranty if the Buyer or any third party makes any further use of such Goods after giving notice in accordance with clause 9.4;
9.2.2.the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
9.2.3.theSellershallbeundernoliabilityinrespectofanydefectintheGoodsarising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in Writing) or (if there are none) good trade practice, misuse or alteration or repair of the Goods without the Seller’s approval;
9.2.4.the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
9.2.5.the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
9.3.SUBJECT AS EXPRESSLY PROVIDED IN THESE CONDITIONS, ALL WARRANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
9.4.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 description must (whether or not delivery is refused by the Buyer) be notified in Writing to the Seller: (a) within 7 days from the date of delivery to the Buyer, or (where the Buyer has purchased the Goods for resale) within 7 days from the date of delivery to the Buyer’s customer or within one month of delivery to the Buyer, whichever is sooner; or (b) (where the defect or failure was not apparent on reasonable inspection) within a reasonable time (not exceeding 7 days) after discovery of the defect or failure or after such defect or failure ought reasonably to have been discovered (by the Buyer or its customer, as applicable) and in any event within two years after delivery to the Buyer. If the Buyer notifies the Seller of any such defect, the Buyer must provide the Seller with a reasonable opportunity of examining such Goods and (if asked to do so by the Seller) must return such Goods to the Supplier. If delivery is not refused, and the Buyer does not notify the Seller of a defect and/or provide the Seller an opportunity for inspection and/or return the Goods (if requested) in accordance with this clause 9.4, 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.
9.5.Where any valid claim under clause 9.1 arises in respect of any of the Goods based on any defect in the quality or condition of the Goods or their failure to meet description and the Buyer fulfils its obligations under clause 9.4, the Seller shall, at its option, 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) or rectify the said defect at the Seller’s cost, but the Seller shall have no further liability to the Buyer in respect of such Goods’ failure to comply with the applicable warranty in clause 9.1. The terms of these Conditions shall apply to any replacement Goods supplied by the Seller.
9.6.SUBJECT TO CLAUSE 9.8, THE SELLER SHALL NOT BE LIABLE TO THE BUYER UNDER ANY CIRCUMSTANCES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR
OTHERWISE) FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS FOR CONSEQUENTIAL COMPENSATION WHATSOEVER; ANY LOSS OF PROFIT; ANY LOSS OF BUSINESS OR BUSINESS OPPORTUNITY; OR LOSS OF ANTICIPATED SAVING (AND WHETHER CAUSED BY THE NEGLIGENCE OF THE SELLER, ITS EMPLOYEES OR AGENTS OR OTHERWISE), WHICH ARISES OUT OF OR IN CONNECTION WITH THE SUPPLY OF THE GOODS AND/OR SERVICES OR THEIR USE OR RESALE BY THE BUYER.
9.7.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 and/or Services, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
9.7.1.act of God, explosion, flood, tempest or other extreme weather conditions, fire or accident;
9.7.2.earthquake, subsidence, epidemic or other natural disaster;
9.7.3.war or threat of war, sabotage, insurrection, civil disturbance, riot or requisition or acts or threatened acts of terrorism;
9.7.4.acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the governmental, parliamentary or local authority;
9.7.5.import or export regulations or embargoes;
9.7.6.impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
9.7.7.strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
9.7.8.difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.7.9.interruption or failure of utility service or failure of public or private telecommunications networks; or
9.7.10.power failure or breakdown in machinery.
9.8.No provision contained in this these Conditions shall exclude or limit the liability of the Seller for death or personal injury caused by the negligence of the Seller or its employees, agents or subcontractors, fraud or fraudulent misrepresentation of the Seller, any breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession) or any other matter for which the Seller may not exclude or limit its liability under applicable law .
9.9.SUBJECT TO CLAUSE 9.8, THE SELLER’S TOTAL LIABILITY TO THE BUYER IN RESPECT OF ALL LOSSES ARISING UNDER OR IN CONNECTION WITH THE CONTRACT (WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE), SHALL IN NO CIRCUMSTANCES EXCEED THE PRICE PAID BY THE BUYER FOR THE GOODS AND SERVICES UNDER THE CONTRACT.
9.10.The Buyer indemnifies the Seller in respect of all damage or injury to any person or loss of or damage to any property and against all actions, suits, claims, demands, costs, charges or expenses arising at common law or under the Consumer Protection Act 1987 or otherwise under statute as a result of any of the circumstances set out at clause 9.2.
9.11.The Seller warrants that the Services will be provided using reasonable care and skill.
10.Insolvency of Buyer
10.1.This clause applies if:
10.1.1.the Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
10.1.2.the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal or enters into any compromise or arrangement with its creditors;
10.1.3.a petition is filed,a notice is given,a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation or reconstruction;
10.1.4.the Buyer (being an individual) is the subject of a bankruptcy petition or order;
10.1.5.an application is made to court, or an order is made, for the appointment of an administrator or if notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer (being a company);
10.1.6.a creditor or an encumbrancer of the Buyer takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the assets of the Buyer and such attachment or process is not discharged within 14 days;
10.1.7.(being a company) the holder of a qualifying charge over the Buyer’s assets has become entitled to appoint or has appointed an administrative receiver;
10.1.8.any event occurs, or proceeding is taken,with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 10.1.1 to 10.1.7 (inclusive);
10.1.9.the Buyer suspends or threatens to suspend, or ceases or threatens to cease, to carry on all or substantially the whole of its business; or
10.1.10.(being an individual)the Buyer dies, or by reason of illness or incapacity is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.2.If this clause 10 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract
immediately upon written notice to the Buyer or suspend any other deliveries of Goods and/or performance of Services under the Contract without any liability to the Buyer, and if Goods have been delivered or Services provided but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.Consequence of Termination
11.1.On termination of the Contract for any reason:
11.1.1.the Buyer shall return all of the Seller Materials. If the Buyer fails to do so, then the Seller may enter the Buyer’s premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
11.1.2.the Buyer shall cease all use of the Seller’s confidential information;
11.1.3.the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has yet been submitted, the Seller shall submit an invoice which shall be payable by the Buyer immediately on receipt, and the Seller may apply any deposit paid by the Buyer towards any sums due under such invoices;
11.1.4.the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
11.1.5.clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.1.Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
12.2.Where Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in Writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
12.3.The Buyer shall be responsible for complying with any legalisation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
12.4.Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered FOB the air or sea port of shipment or freight terminal and the Seller shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
12.5.The Buyer shall be 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 such inspection and which is made after shipment, or in respect of any damage during transit.
12.6.Where credit is extended, payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a clearing bank in the U.K. acceptable to the Seller or, if the Seller has agreed in Writing, on or before acceptance of the Buyer’s order, to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 30 days after sight to the order of the Seller at such branch of a bank in England as approved by the Seller as may be specified in the bill of exchange.
13.1.Copyright, design rights, registered designs, trade marks and other intellectual property of whatever nature arising out of or in connection with any Goods, Services (including deliverables of the Services), literature or other materials supplied by the Seller to the Buyer in connection with the Contract shall be owned by and remain the property of the Seller unless otherwise agreed expressly in Writing signed by the Seller and the Buyer acknowledges that it may not copy or reproduce of otherwise use the same in whole or in part and in any way whatsoever in any part of the world without permission or licence in Writing from the Seller.
13.2.In the event that the Buyer learns of any use or proposed use by any third party of the Seller’s intellectual property rights which might amount to an infringement of such intellectual property rights or to passing-off or unfair competition in any part of the world the Buyer shall forthwith notify the Seller in Writing giving full particulars thereof and shall provide all information and assistance to the Seller in the event that the Seller decides that proceedings (which shall be under the control and at the cost of the Seller) should be undertaken.
13.3.The Buyer acknowledges that, in respect of any third party intellectual property rights in the Goods and/or Services, the Buyer’s use of any such intellectual property rights is conditional on the Seller obtaining a written licence from the relevant licensor on such terms as will entitle the Seller to license such rights to the Buyer.
13.4.All Seller Materials are the exclusive property of the Seller.
13.5.In respect of any designs, plans or other materials provided by the Buyer to the Seller to be used in the supply of Goods and/or Services:
13.5.1.the Buyer and its licensors shall retain ownership of their rights in such materials;
13.5.2.the Buyer warrants that it has all rights, licences, consents and permissions required to use such materials in this manner and to grant the licence under clause 13.5.3. If the Seller determines that the Buyer has breached this warranty, the Seller reserves the right to refuse to accept the Buyer’s order, cancel the Contract or take such action as the Seller deems appropriate;
13.5.3.the Buyer grants to the Seller anon-exclusive, royalty-free, worldwide licence to use, store and copy such materials to the extent required in order for the Seller to supply the Goods and Services;
13.5.4.the Buyer shall indemnify and hold harmless the Seller against all liabilities, costs, expenses, fines, penalties, damages and losses 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 or other proprietary rights arising out of or in connection with the Seller’s use of any such content or material in accordance with this clause 13.5. This clause shall survive termination of the Contract.
14.1.Any advertisements, consumer information, instructions, recommendations or labelling (the “Literature”) supplied by the Seller relating to the Goods, have been prepared to comply with statutory regulations (if any) relating to the Goods and/or Services and with a view to providing information for users as to the physical characteristics of the Goods and precautions to be taken with regard to their use. The Buyer undertakes to the Seller:-
14.1.1.only to use in relation to the Goods and/or Services the Literature supplied or approved in Writing by the Seller;
14.1.2.not to remove from the Goods prior to re-sale, fitting, or installation any Literature supplied with the Goods by the Seller;
14.1.3.not to make any statement, representation or claim or give any warranty to any person in respect of the Goods and/or Services save as in the Seller’s Literature or as specifically authorised by the Seller; and
14.1.4.not to supply use or install or knowingly permit the Goods to be supplied, used or installed by any third party(including any of its employees, agents or sub-contractors) outside the purpose intended and/or otherwise than in accordance with any literature supplied with the Goods.
15.1.Any communication required to be made under this Contract shall be in Writing but where these Conditions require a notice then this shall only be validly given if in writing sent by pre-paid first class post or delivered by hand to the party concerned (at its registered office or, in the case of the Buyer, at the address given by the Buyer to the Seller) or by facsimile transmission. Notices sent by first class post shall be deemed to have been given two working days after posting (exclusive of the day of posting); notices delivered by hand shall be deemed to have been received on the day of delivery. Notices sent by facsimile transmission on a working day shall be deemed to have been received on that day unless they are sent after 4.00pm or on a non working day when they shall be deemed to have been served on the next working day (provided confirmation of successful transmission has been received by the sender). For the avoidance of doubt notices will not be validly served if sent by electronic mail. For the purposes of this clause ‘working day’ shall mean a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.2.A waiver of any right under the Contract or law is only effective if it is in Writing. 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.
15.3.If any provision of these Conditions is held by a court or other 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.
15.4.If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (Dispute) then either party shall give to the other written notice of the Dispute (setting out its nature and full particulars together with supporting documents) and the parties shall attempt in good faith to resolve the Dispute. If the parties have not resolved the Dispute within 14 days of such written notice, the Dispute shall be referred to a senior officer of each party, who shall attempt in good faith to resolve it.
15.5.The Buyer shall not assign the Contract nor any of its rights and obligations thereunder without the prior written consent of the Seller.
15.6.The operation of the Contracts (Rights of Third Parties) Act 1999 (the 1999 Act) is excluded and shall not apply and the parties to the Contract may amend vary or terminate it or any Conditions in such a way as may affect any rights or benefits of any third party which would but for this clause be directly enforceable against the parties under the 1999 Act without the consent of such third party.
15.7.These Conditions, the Contract and any disputes or claims arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by the laws of England and Wales.
15.8.Each party irrevocably agrees, for the sole benefit of the Seller that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. Nothing in this clause shall limit the right of the Seller to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction
16.1.The Buyer undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, suppliers or products of the Seller, except as permitted by clause 16.2.
16.2.The Buyer may disclose the Seller’s confidential information to:
16.2.1.its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Buyer’s rights or carrying out its obligations under or in connection with the Contract. The Buyer shall ensure that its employees, officers, representatives or advisers to whom it discloses the Seller’s confidential information comply with this clause 16; and
16.2.2.as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3.The Buyer shall not use the Seller’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
For full export Trading Terms and Conditions please contact the export department at head office.
Chelsom Limited. 2020
Carriage and packaging
Carriage and packaging is free for U.K. mainland (excluding Northern Ireland) deliveries providing net invoice values reach the ‘Carriage paid’ figure stipulated on the current price list. For invoices not reaching that figure or for express deliveries by carrier, carriage and handling will be charged at cost. For off-shore British Isles deliveries (including Northern Ireland), please enquire for carriage and packing charges. For export orders, all prices are ex-works. Quotations for freight to any destination can be supplied upon request. Special export packing will be included on all export quotations. If part shipment is requested, the above Conditions apply to each individual delivery.
Goods officially ordered by the Buyer and supplied correctly by the Seller will not normally be accepted for return. Any request to return Goods made in Writing will be considered and if accepted, a re-stocking charge will be made.
The protective lacquer on any Goods installed on damp or wet plaster or decorators’ fillers may be attacked by the chemicals therein. Please ensure that all plaster or filler has fully dried out before installation.