IBC Products Limited - Terms & Conditions For The Sale of Goods

  1. INTERPRETATION

(a) The definitions and rules of interpretation in this condition apply in these conditions.

Company: IBC Products Limited (registered in England no.13876451) whose

registered office is at Units 1-3, Empire Industrial Estate, Brickyard Road, Aldridge, West Midlands WS9 8UD.

Contract: any contract between the Company and the Purchaser for the sale and pur chase of the Goods, incorporating these conditions.

Goods: any goods and/or services agreed in the Contract to be supplied by the Company to the Purchaser.

Purchaser: the person, firm or company who purchases the Goods.

(b) A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

(c) Words in the singular include the plural and in the plural include the singular.

(d) A reference to one gender includes a reference to the other gender.

(e) Condition headings do not affect the interpretation of these conditions.

  1. QUOTATION AND ACCEPTANCE

(a) All quotations are given and all orders are accepted on these terms which shall apply to he exclusion of and shall override any other terms stipulated or referred to by thePurchaser whether in its order or any other document, or in any negotiations or communication or course of dealing established between the Company and the Purchaser.

(b) No modification or amendment of these terms or addition thereto shall be effective unless made in writing and signed by a director of the Company.

  1. DESCRIPTION OF AND STATEMENTS AS TO GOODS

(a) Save where the Goods are stated to be sold as complying with a recognised trade or industry standard, all descriptions,specifications, drawings and particulars of weights and dimensions submitted by the Company or otherwise contained in the Company’s catalogues, brochures, price lists, quotations and publicity materials are approximate only and the Company shall not be liable for their accuracy unless they are expressly incorporated into the Contract in writing.

(b) These terms represent the entire agreement between the Company and the Purchaser relating to the Goods and such terms supersede and the Purchaser shall not place any reliance upon any statements, recommendations and advice whether oral or in writing given (whether before or after the acceptance by the Company of the Purchaser’s order) by the Company, its servants or agents as to any matter relating to the Goods save where such statement, recommendations or advice is given in writing and signed by a director of the Company in response to a specific written request from the Purchaser before or at the time of the Company’s acceptance of the order.

  1. PRICES

(a) Prices quoted by the Company are those in effect at the date of quotation. Unless otherwise agreed in writing, the Company reserves the right to increase prices when it accepts the Purchaser’s order so as to reflect one or more of the following:

i. any variation that may have occurred in the costs of labour, materials, suppliers overheads and transport;

ii. any change in duty, tax, surcharge or levy of any kind whatsoever affecting the sale price of the Goods;

iii. any cost to the Company resulting from delay by the Purchaser in giving to the Company information sufficient to enable it to supply the Goods or provide the services or resulting from any alteration made at the request of the Purchaser in the specification of the Goods or in the place to which they are to be delivered or shipped; and

iv. any extra cost to the Company resulting from the Goods being carried at the request of the Purchaser by mode of transport more expensive than the Company’s normal form of transport.

(b) The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Purchaser shall pay (if applicable) in addition when it is due to pay for the Goods.

  1. PAYMENT

(a) Unless otherwise agreed in writing, the price for the Goods will be due and payable in pounds sterling on the last business day of the month following the month in which the Goods are delivered.

(b) The Company shall be entitled to charge interest on any part of the price which is not paid in accordance with condition (a) from the due date for payment at the rate per annum of 3% above the base lending rate from time to time of NatWest Bank Plcaccruing on a daily basis until payment is made, whether before or after any judgment.

(c) Time of payment is of the essence and if the Purchaser defaults in punctual payment of the price the Company shall be entitled to terminate the Contract and recover the Goods at the Purchaser’s expense without prejudice to any further rights which the Company may have. No payment shall be deemed to have been received until the Company has received cleared funds.

(d) Any default in payment of an invoice or an instalment payment on an invoice on the due date shall render the entire balance outstanding on all invoices from the Company to the Purchaser immediately payable in full without demand being madenotwithstanding any contrary provisions as to terms of payment in any one or all invoices.

(e) If the Purchaser fails to give all instructions reasonably required by the Company and all necessary document, licences, consents and authorities for forwarding the Goods or is unable to accept delivery of the Goods at the time when the Goods are due and ready for despatch or delivery or shall otherwise cause or request delay, the Purchaser shall pay to the Company all costs and expenses, including storage and insurance charges incurred or arising from such delay during which, at the Company’s absolute discretion if its storage facilities permit, the Goods will be stored at the Purchaser’s sole risk. This provision shall be in addition to and not in substitution for any other payment or damages for which the Purchaser may be liable in respect of his failure to take delivery at the appropriate date.

(f) The Purchaser shall not be entitled to make any deduction from the price of Goods which have been delivered to the Purchaser in respect of any set off or counterclaim unless both the validity and the amount thereof have been expressly admitted in writing by the Company and such admission is signed by a director of the Company.

(g) In the absence of any specific appropriation by the Purchaser, the Company shall have the right to appropriate any payment made by the Purchaser towards the satisfaction of any invoice outstanding from time to time as the Company shall in its absolute discretion think fit.

  1. DELIVERY

(a) Any time or date stated for delivery is given and intended as an estimate only and the Company shall not be liable for any loss or damage whatsoever resulting from any delay in delivery howsoever arising.

(b) Unless otherwise stated in writing delivery shall be deemed to take place upon the occurrence of the first in time of the following, namely:

i. the physical delivery of the Goods to the Purchaser at the Company’s works;

ii. the physical delivery of the Goods to the Purchaser’s carrier or agent for the purpose of transmission to the Purchaser or his nominee;

iii. the physical delivery of the Goods to the Purchaser’s place of business or such other place as he may direct by the Company, its carrier or agent, the Purchaser being responsible for unloading.

(c) Signature of the Company’s delivery note by any employee, representative or agent of the Purchaser shall be conclusive proof of delivery.

(d) Where the Contract provides for delivery by the Company, its carrier or agent:

i. any claims for non-delivery must be made in writing to the Company within three days of receipt of invoice or advice note whichever is the earlier; and

ii. any claims in respect of Goods damaged in transit or shortages in delivery must be made in writing to the Company within three days of delivery; shortages in delivery shall not give rise to a right to reject the Goods delivered.

(e) The Company shall be entitled to make partial deliveries or deliveries by instalments and all the provisions of these terms shall apply to such deliveries.

(f) Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Purchaser to repudiate or cancel any other Contract or instalment.

  1. PROPERTY AND RISK

(a) Risk in the Goods shall pass to the Purchaser at the time at which delivery takes place in accordance with condition 6 above and the Purchaser shall be solely responsible for insuring the Goods thereafter;

(b) The Company shall retain ownership of and title in the Goods delivered until full payment has been made in respect of all such Goods. Until such time the Goods shall be:

i. stored separately (at no cost to the Company) from other goods in the possession of the Purchaser or any third party;

ii. marked or otherwise rendered identifiable as being the property of the Company and any identifying mark or packaging on or relating to the Goods shall not be destroyed, defaced or obscured;

iii. held by the Purchaser on a fiduciary basis as bailee of the Company;

iv. held by the Purchaser free from any charge, lien or other encumbrance;

v. maintained in satisfactory condition and kept insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Purchaser shall produce the policy of insurance to the Company.

(c) Provided the Company has not requested their return and notwithstanding that payment in full has not been made for all of the Goods delivered, the Purchaser as principal and not as agent for the Company shall be entitled to use the Goods or offer for sale and sell them in the ordinary course of his business.

(d) Where the Purchaser sells the Goods prior to paying for them in full:

i. the Company shall be legally and beneficially entitled to the proceeds of sale;

ii. the Purchaser shall hold the proceeds of sale on trust for the Company and shall not mingle them with other monies and shall not pay them into an overdrawn bank account; and

iii. the Purchaser shall deposit the proceeds of sale in a separate bank account, the location and number of which he has previously notified to the Company, and he shall not be entitled to use or deal with the proceeds of sale until payment in full for the Goods has been made to the Company.

(e) The Company shall have the right at any time by its servants or agents to enter the Purchaser’s premises where the Goods are stored, or are thought by the Company to be stored, so as to:

i. retake possession of the Goods when the Company has requested their return and the Purchaser has not

immediately complied with the request, such retaking or return to be without prejudice to any other rights the Company may have arising therefrom;

ii. inspect the storage of the Company’s Goods which have not been paid for in full or, where the Purchaser’s right to possession has terminated, to recover them; and

iii. investigate and ascertain whether all these terms are being complied with.

  1. QUALITY

(a) Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Purchaser the benefit of any warranty or guarantee given to the Company. However the Company shall not be required to commence litigation against such manufacturer or supplier or to incur any expense in connection with any such claim by the Purchaser;

(b) The Company warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods shall:

iii. be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

iv. be reasonably fit for purpose.

c) The Company shall not be liable for a breach of any of the warranties in condition 8(b) unless:

i. the Purchaser gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within three (3) days of the time when the Purchaser discovers or ought to have discovered the defect; and

ii. the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Purchaser (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Purchaser’s expense, (unless otherwise agreed in writing by the Company), for the examination to take place there.

(d) The Company shall not be liable for a breach of any of the warranties in condition 8(b) if:

i. the Purchaser makes any further use of such Goods after giving such notice; or

ii. the defect arises because the Purchaser failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

iii. the Purchaser alters or repairs such Goods without the written consent of the Company.

(e) Subject to condition 8(c) and condition 8(d), if any of the Goods do not conform with any of the warranties in condition 8(b) the Company shall at its option replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Purchaser shall, at the Purchaser’s expense (unless otherwise agreed to in writing by the Company), return the Goods or the part of such Goods which is defective to the Company.

(f) If the Company complies with condition 8(e) it shall have no further liability for a breach of any of the warranties in condition 8(b)

in respect of such Goods.

(g) Any Goods replaced shall belong to the Company and any replacement Goods shall be guaranteed on these terms for theunexpired portion of the 12 month period.

  1. LIMITATION OF LIABILITY

(a) Subject to condition 6 and condition 8, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser in respect of:

i. any breach of these conditions;

ii. any use made or resale by the Purchaser of any of the Goods, or of any product incorporating any of the Goods; and

iii. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

(b) All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

(c) Nothing in these conditions excludes or limits the liability of the Company:

i. for death or personal injury caused by the Company’s negligence; or

ii. under section 2(3), Consumer Protection Act 1987; or

iii. for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

iv. for fraud or fraudulent misrepresentation.

(d) Subject to condition 9(b) and condition 9(c):

i. 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; and

ii. the Company shall not be liable to the Purchaser for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

  1. INDEMNITY AS TO INTELLECTUAL PROPERTY RIGHTS

(a) The Purchaser shall indemnify the Company against all loss, damages, costs and expenses suffered or incurred by the Company or to which the Company may become liable as a result of any work carried out in accordance with the Purchaser’s specifications(s) which involves infringement or alleged infringement of a patent, registered design or other intellectual property right.

(b) If the Purchaser uses or sells the Goods in such a manner as to infringe any such rights the company shall not be responsible for such infringement and the Purchaser agrees to indemnify the Company from and against all liability arising therefrom.

  1. TERMINATION

(a) The Company shall have the right forthwith to cancel the Purchaser’s order if any of the following events occur and subject to enforcement of the Company’s rights to recover the Goods and to receive payment of the price or damages, the Contract shall be deemed to have terminated:

i. the Purchaser commits any breach of its obligations to the Company;

ii. any distress or execution is levied upon any property of the Purchaser;

iii. the Purchaser makes or offers to make any arrangement or composition with creditors or commits any act of bankruptcy or insolvency;

iv. any resolution is passed or petition presented to any court for the winding up of the Purchaser or for the granting of an administration order in respect of the Purchaser, or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser;

v. a receiver, manager, administrator or administrative receiver is appointed or any chargee takes possession of all or any part of the undertaking or assets of the Purchaser;

vi. the Purchaser stops payment or ceases or threatens to cease to carry on its business or to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

vii. any remittance for payment of the whole or any part of the purchase price of the Goods is dishonoured by the Purchaser’s bankers.

(b) The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.

(c) On termination of the Contract, howsoever caused, the Company’s (but not the Purchaser’s rights contained in this condition 11 shall remain in effect.

  1. ASSIGNMENT

(a) The Purchaser shall not assign or transfer or purport to assign or transfer any Contract to which these terms apply to any other person without the Company’s prior written consent.

(b) The Company reserves the right to assign, delegate, subcontract or transfer the performance of the Contract or any part of it to any person, firm or company.

  1. FORCE MAJEURE

If the Company is prevented or delayed (directly or indirectly) from making delivery of the Goods or any part thereof or fromotherwise performing the Contract or any part thereof by reason of acts of God, war, embargo, riot, strike, lock-out, trade dispute, fire, breakdown of plant or machinery, inclement weather, interruption of transport, governmental action, national emergency, acts of terrorism, delay in delivery to the Company of any Goods or materials, or by any cause whatsoever (whether or not of a like nature to the aforegoing) outside its control, it shall be under no liability whatsoever to the Purchaser and shall be entitled, at its option either to cancel the Contract or without any liability to extend the time or times for delivery by a period equivalent to that during which such delivery has been prevented.

  1. GENERAL

(a) 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.

(b) 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.

(c) Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Purchaser shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

(d) The parties to the Contract do not intend 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.

  1. COMMUNICATIONS

(a) 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:

i. (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Purchaser by the Company; or

ii. (in the case of the communications to the Purchaser) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Purchaser set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Purchaser.

(b) Communications shall be deemed to have been received:

i. if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or

ii. if delivered by hand, on the day of delivery; or

iii. if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.

iv. Communications addressed to the Company shall be marked for the attention of the Managing Director.

  1. PROPER LAW

The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

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