1.1 Definitions. In these Conditions, the following definitions apply:
1.1.1 Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
1.1.2 Conditions: the terms and conditions set out in this document.
1.1.3 Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
1.1.4 Customer: the person or firm who purchases the Goods from the Supplier.
1.1.5 Customer Materials: Any materials which are provided by the Customer to the Supplier for use in relation to the Order.
1.1.6 Ex Works: has the meaning set out in the International Commercial Terms 2010 (Incoterms) published by the International Chamber of Commerce.
1.1.7 Force Majeure Event: has the meaning given in Clause 11.
1.1.8 Goods: the goods (or any part of them) set out in the Order and which shall include the Customer Materials.
1.1.9 Intellectual Property Rights: means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights belonging to Colloids Limited and the Tosaf Group, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.1.10 Order: the Customer’s order for the Goods, as set out in the Customer’s written acceptance of the Supplier’s quotation.
1.1.11 Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
1.1.12 Supplier: Colloids Limited (registered in England and Wales with company number 05058123).
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.4 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.
1.2.5 A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall be deemed to be accepted only when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence. Given the bespoke nature of the Goods and that the Goods are made in line with a Specification which incorporates specific Customer requirements, the Order, once accepted, shall be final and binding.
2.4 An Order can only be amended or varied on acceptance of a revised Order signed in writing by a duly authorised representative of the Supplier.
2.5 The Customer will have no right to cancel the Order once the Supplier has issued a written acceptance of the Order.
2.6 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.7 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.8 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3.1 The Goods are described in the Specification.
3.2 To the extent that the Specification incorporates the use of Customer Materials the Customer warrants that the Customer Materials are of appropriate quality and are fit for the purpose of enabling the Supplier to manufacture the Goods in accordance with the Specification. Should the Supplier become aware that the Customer Materials are not fit for purpose in accordance with this condition 3.3, the Supplier shall notify the Customer who will replace the Customer Materials at the Customer’s expense and in accordance with Supplier instructions.
3.3 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with the use of Customer Materials (which includes but is not limited to damage to Supplier property and equipment).
3.4 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3.5 Unless the Supplier confirms otherwise the price of the Goods is inclusive of the costs and charges of delivery.
4.1 Unless and to the extent that it is agreed otherwise between the parties the Supplier shall make provision for the delivery of the Goods and shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and
4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.6 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.7.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, (taking into account the date required by customer) the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 The Supplier warrants that on delivery, and for a period of three months from the date of delivery (Warranty Period), the Goods shall:
5.1.1 conform with their description and any applicable agreed Specification;
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be fit for any purpose held out by the Supplier.
5.2 Subject to condition 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier within three working days of discovery that some or all of the Goods do not comply with the warranty set out in condition 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in condition 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with condition 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
5.3.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
5.3.7 the Goods are used for a purpose or in such a manner outside that set out in the Order; or
5.3.8 where, as a result of faulty raw materials used in the production of the Goods (fault unknown by the Supplier), the Goods suffer from a defect which would not be discoverable upon reasonable physical inspection or testing (Latent Defect).
5.4 Except as provided in this condition 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in condition 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 and all other applicable legislation are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 Unless otherwise agreed in writing, the risk in the Goods shall pass to the Customer at the point of delivery by the Supplier.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
6.2.1 the Goods; and
6.2.2 any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 Notify the Supplier immediately if it becomes subject to any of the events listed in Clause 8.2; and
6.3.6 Give the Supplier such information relating to the Goods as the Supplier may require from time to time.
The Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the relevant events listed in Clause 8.2, then, without limiting any other right or remedy the Supplier may have, the Customer’s right to resell or otherwise dispose of the Goods ceases immediately, and the Supplier may at any time:
6.4.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
6.4.2 enter into any premises of the Customer or any third party where the Goods are stored in order to recover them.
6.5 In the event of the Customer becoming subject to any of the relevant events listed in clause 8.2 and title in the Goods has passed to the Customer, the rights of the Supplier as set out in clause 6.4 shall apply in respect of recovering any outstanding sums owed to the Supplier by the Customer.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order.
7.2 Unless stated otherwise in the Order and expressly agreed in writing by the Supplier, the Goods shall be delivered and paid on an Ex Works basis.
7.3 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.3.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.3.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.3.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 The Supplier may invoice the Customer for the Goods at any time, including on the Customer ordering the Goods.
7.6 The Customer shall pay the invoice price of the Goods in full and in cleared funds within 30 Business Days of the date of the invoice, unless on ordering the Goods otherwise agreed in writing by a director of Colloids. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 6% per annum above the Bank of England base rate from time to time or 6% per year for any period when that base rate is below 0%. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment and shall be compounded on the last Business Day of each week. The Customer shall pay the interest together with the overdue amount.
7.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date the Supplier shall be entitled to a general lien on all Goods belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to the Supplier. The Supplier shall be entitled, on the expiry of 30 days’ notice in writing to dispose of such Goods in such manner and at such price as it thinks fit and to apply the proceeds to the amount outstanding.
7.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. CUSTOMER’S INSOLVENCY OR INCAPACITY
8.1 If the Customer becomes subject to any of the events listed in condition 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer or bespoke product manufactured to an order shall become immediately due.
8.2 For the purposes of Clause 8.1, the relevant events are:
8.2.1 the Customer 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, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
8.2.3 (being a company) 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 Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;
8.2.5 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to 8.2.4 (inclusive); and
8.2.6 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
9.1.4 defective products under the Consumer Protection Act 1987.
9.2 Subject to condition 9.1:
9.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Supplier’s total liability to the Customer in respect of all other 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 of the Goods as detailed in the Order.
10. INTELLECTUAL PROPERTY
10.1 All Intellectual Property Rights in or arising out of or in connection with the production and supply of Goods (other than Intellectual Property Rights in any materials exclusively provided by the Customer) shall be owned by the Supplier.
10.2 To the extent that the Goods are to be manufactured in accordance with the Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Specification. This Clause 10.2 shall survive termination of the Contract.
10.3 All Intellectual Property Rights in the Goods created during the performance of the Order and in accordance with these Conditions shall vest in and belong to the Supplier.
10.4 The Customer shall not under any circumstances or at any time remove, deface or obscure any branding, identifying mark or packaging on or relating to the Goods.
11. FORCE MAJEURE
The Supplier shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond the Supplier’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, failure and/or shortage in the supply of raw materials used in the production of the Goods, currency fluctuations, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12. DISPUTE RESOLUTION
12.1 If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute), then, except as expressly provided in this Contract, the parties shall follow the procedure set out in this clause:
12.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, a senior representative of the Supplier and a senior representative of the Customer shall attempt in good faith to resolve the Dispute;
12.1.2 If the senior representative of the Supplier and the senior representative of the Customer are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Director of the Supplier and the Director of the Customer who shall attempt in good faith to resolve it; and
12.1.3 If the Director of the Supplier and the Director of the Customer are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (Mediation Notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the Mediation Notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the Mediation Notice.
12.2 The commencement of the dispute resolution procedures detailed in this clause up to and including mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under Clause 13.8 (Governing Law and Jurisdiction), which clause shall apply at all times.
12.3 If the Dispute is not resolved within 30 days after service of the Mediation Notice, or either party fails to participate or ceases to participate in the mediation before the expiry of that 30-day period, or the mediation terminates before the expiry of that 30 day period, the Dispute shall be finally resolved by the courts of England in accordance with Clause 13.8 (Governing Law and Jurisdiction) in this Contract.
13.1 Assignment and subcontracting
13.1.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
13.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing in the English language, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
13.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4 Confidentiality. The Customer shall keep confidential all technical or commercial know-how, confidential information (whether oral or written), drawing, artwork, specifications, samples and technical documentation furnished by or on behalf of the Supplier in respect of the Order or which became known to the Customer as a result of it entering in to the Contract.
13.5 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.6 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.7 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing by an authorised representative of the Supplier and a Director of the Customer and signed by an authorised representative of the Supplier.
13.8 Governing law and Jurisdiction.
13.8.1 This Contract, and any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes, mediation or claims), shall be governed by, and construed in accordance with English law.
13.8.2 The parties irrevocably submit to the exclusive jurisdiction of the courts of England to settle 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. All proceedings are to be conducted in the English Language.
13.9 Governing Language:
13.9.1 This Contract is drafted in the English language, and all business arising out of or in connection with this Contract or its subject matter or formation (including contractual and non-contractual disputes, mediation and claims) and notices given under this Contract shall be exclusively in the English Language unless expressly prohibited by law.
13.9.2 Where exclusive use of the English Language is expressly prohibited by law, the parties agree that any document in a language other than English shall be accompanied by a certified English translation. In the event of a conflict, the English language version of these Conditions and any other document or notice shall prevail.