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Terms and Conditions of Sale 2008
1 Interpretation
1.1 In these Conditions: ‘the Customer’ means the person(s), firm or company who purchases the Goods from the Company; ‘the Company’ means Intercolor Limited; ‘Contract’ means any contract between the Company and the Customer for the sale and purchase of the Goods, incorporating these Conditions; ‘Delivery Point’ means the place where delivery of the Goods is to take place under condition 4; and ‘Goods’ means any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them) together with any preproduction samples of such goods and services provided to the Customer by the Company in connection therewith.
1.2 References to any statute or statutory provision shall be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, reenacted or replaced.
1.3 References to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 Headings will not affect the construction of these conditions
2 Application of Terms
2.1 Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions
7 Price
Unless otherwise agreed by the Company in writing the price for the Goods shall be:
7.1 the price set out in the Company’s price list published on the date of delivery or deemed delivery;
7.2 exclusive of any value added tax or any analogous sales tax which amount the Customer will pay in addition when it is due to pay for the Goods; and
7.3 inclusive of all costs or charges in relation to packing, loading, unloading, carriage, freight, postage and insurance prior to delivery or deemed delivery of the Goods.
8 Payment
8.1 Payment of the price for the Goods is due within 30 days after the end of the calendar month in which the Company raised the invoice.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
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Terms and conditions of sale 2008
(including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document)
2.2 No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director for the time being of the Company.
2.4 Each order for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods subject to these Conditions.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Customer.
2.6 The Customer must ensure that the terms of its order and any specifications are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into existence until the Company issues a written acknowledgement of order to the Customer. Any quotation is valid for a period of 90 days only from its date, provided that the Company has not previously withdrawn it.
3 Description and development work
3.1 The description of the Goods shall be as set out in the Company’s quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
3.3 The Company shall be entitled to charge the Customer for any development work carried out in accordance with the Customer’s specifications and any date specified by the Company for delivery of Goods is subject to the Customer supplying satisfactory specifications within a reasonable time to enable the Company to complete such delivery within the agreed period.
3.4 Preproduction samples of Goods may be submitted to the Customer for approval and such approval shall be the Customer’s exclusive responsibility. The Company shall be entitled to charge the Customer for any alterations to or additional preproduction samples of Goods requested by the Customer and the Customer acknowledges and accepts that such additional work may lead to a delay in original delivery estimates.
4 Delivery
4.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at the Company’s place of business.
4.2 The Customer will take delivery of the Goods within 1 day of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.4 Subject to the other provisions of these Conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 90 days.
4.5 If for any reason the Customer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations: 4.5.1 risk in the Goods will pass to the Customer (including for loss or damage caused by the Company’s negligence); 4.5.2 the Goods will be deemed to have been delivered; and 4.5.3 the Company may store the Goods until delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation storage and insurance).
4.6 The Customer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for loading the Goods.
4.7 If the Company delivers to the Customer a quantity of Goods of up to 5% more or less than the quantity accepted by the Company the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.8 Where the Contract involves Goods being exported, delivery shall take place ‘ex works’ as expressed in INCOTERMS 2000.
4.9 The Customer shall promptly obtain all necessary export licences, clearances and other consents necessary for the purchase of the Goods. The Customer shall promptly upon request supply all documents reasonably required by the Company for this purpose. The Customer’s failure to obtain such licences, clearances and consents shall not relieve the Customer of any of his/its obligations hereunder.
4.10 Should expedited delivery of the Goods be agreed between the parties the Company may charge the Customer for any overtime and other additional costs resulting therefrom.
5 Non Delivery
5.1 The quantity of any consignment of Goods as recorded by the Company upon dispatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 2 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6 Risk/Title
6.1 The Goods are at the risk of the Customer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Company from the Customer on any account.
6.3 Until ownership of the Goods has passed to the Customer, the Customer must: 6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee; 6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property; 6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; 6.3.4 maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company; and 6.3.5 hold the proceeds of the insurance referred to in condition 6.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Customer may resell the Goods before ownership has passed to it solely on the following conditions: 6.4.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value; and 6.4.2 any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
6.5 The Customer’s right to possession of the Goods shall terminate immediately if the Customer: 6.5.1 has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or 6.5.2 suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or 6.5.3 encumbers or in any way charges any of the Goods.
6.6 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.
6.7 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
6.8 In the event that the Company takes action to recover any Goods delivered but not paid for by the Customer, the Company shall be entitled to recover from the Customer all costs and expenses incurred in taking such action
discount, abatement or otherwise.
8.6 If the Customer fails to pay the Company any sum due pursuant to the Contract: 8.6.1 the Customer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 3% per calendar month or part thereof until payment is made, whether before or after any judgment; and 8.6.2 the Company shall be entitled to suspend further deliveries of Goods to the Customer under this or any other contract until such payment and any interest thereon is received by the Company.
9 Quality
9.1 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Goods will: 9.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1994; and 9.1.2 be reasonably fit for the purpose for which they were supplied and for any particular purpose for which the Goods are being bought if the Customer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgment of the Company, provided that the Customer acknowledges and accepts that the Company can not and does not guarantee the colour matching of the Goods.
9.2 The Company shall not be liable for a breach of any of the warranties in condition 9.1 unless: 9.2.1 the Customer 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 2 days of the time when the Customer discovers or ought to have discovered the defect; and 9.2.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost for the examination to take place there.
9.3 The Company shall not be liable for a breach of any of the warranties in condition 9.1 if: 9.3.1 the Customer makes any further use of such Goods after giving such notice; 9.3.2 the defect arises because the Customer 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 9.3.3 the Customer alters or repairs such Goods without the written consent of the Company.
9.4 Subject to conditions 9.2 and 9.3, if any of the Goods do not conform with any of the warranties in condition 9.1 the Company shall at its option repair or 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 Customer shall, at the Customer’s expense, return the Goods or the part of such Goods which is defective to the Company.
9.5 If the Company complies with condition 9.4 it shall have no further liability for a breach of any of the warranties in condition 9.1 in respect of such Goods.
9.6 Any Goods replaced will belong to the Company.
10 Limitation of liability
10.1 Subject to condition 9, 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 subcontractors) to the Customer in respect of: 10.1.1 any breach of these Conditions; and 10.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 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.
10.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
10.4 Subject to conditions 10.2 and 10.3: 10.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and 10.4.2 the Company shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11 Assignment
The Customer may not assign the Contract or any part of it without the prior written consent of the Company.
12 Force Majeure
The Company reserves the right to defer the date of delivery, cancel the Contract or reduce the volume of the Goods ordered by the Customer if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13 General
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court or tribunal to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable that provision or part thereof shall be deemed severable and the remaining provisions of the Contract shall continue in full force and effect.
13.3 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of that or any subsequent breach or default and will in no way affect the other terms of the Contract.
13.4 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non exclusive jurisdiction of the English courts.
14 Communications
14.1 All communications between the parties must be in writing and delivered by hand or sent by prepaid first class post or facsimile transmission: 14.1.1 (in case of the Company) to its registered office or such changed address as shall be notified to the Customer; or 14.1.2 (in the case of the Customer) to its registered office (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of this Contract or such other address as shall be notified to the Company.
14.2 Communications shall be deemed to have been received: 14.2.1 if sent by prepaid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); 14.2.2 if delivered by hand, on the day of delivery; and 14.2.3 if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
