TERMS AND CONDITIONS OF SUPPLY / DISCLAIMER
The customer's attention is drawn in particular to the provisions of clause 9.
- Definitions: In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 14.7.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases or agrees to purchase the Goods from the Supplier.
Customer Materials: such designs, illustrations, drawings, specifications for the Goods that the Customer may submit to the Supplier in connection with the Order.
Delivery Date: the date specified in the Order for delivery of an Order.
Delivery Location: the location specified in the Order for delivery or collection (as the case may be) of the Goods.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (including any instalment of the goods or any part of them) set out in the Order which the Supplier is to supply in accordance with the Conditions.
Order: the Customer's order for the Goods, as set out in the Supplier’s written acknowledgement of order.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier or stated in the Order.
Supplier: SPC Europe Limited (registered in England and Wales with company number 4098629) whose registered office is at SPC UK Cory Way, West Wilts Trading Estate, Westbury, Wiltshire BA13 4QT.
- Construction. In these Conditions, the following rules apply:
- 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.
- 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.
- Words in the singular include the plural; words in the plural include the singular; and a reference to one gender includes a reference to the other gender.
- A reference to writing or written includes faxes and e-mails.
- In these Conditions “Incoterms 2010” means the international rules for the interpretation of trade terms of the International Chamber of Commerce which came into effect on 1 January 2011. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms 2010 shall have the same meaning in these Conditions but if there is any conflict between the provisions of Incoterms 2010 and these Conditions, these Conditions shall prevail.
- 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, except by specific agreement by both parties.
- Any order or acceptance of an estimate or quotation for the Goods by the Buyer shall be deemed to be an offer by the Buyer to buy the Goods subject to these Conditions.
- No order placed by the Buyer shall be deemed accepted by the Supplier until the Supplier issues the Order at which point (and not before) an Order is deemed to be placed and the Contract comes into existence.
- The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
- 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, except by separate agreement specifically agreed by both parties.
- 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.
- Any estimate or quotation for the Goods given by the Supplier shall not constitute an offer. The estimate or quotation shall only be valid for a period of 20 Business Days from its date of issue provided that the Supplier has not previously withdrawn it.
- Any advice or recommendation given by the Supplier or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Supplier is followed or acted on entirely at the Customer’s risk and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
- The Goods are described in the Order and the Specification.
- The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements. Where the customer has requested, or owns, the specification, the Customer will update the specification as required to remain compliant.
- No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Supplier as a result of cancellation.
- Where the Delivery Location for the Goods is the Supplier’s premises:
4.1.1 the Customer shall collect the Goods from the Supplier's premises on the Delivery Date;
4.1.2 delivery of the Order shall be completed when the Supplier places the Goods at the Customer’s disposal at the Delivery Location.
4.2 Where the Delivery Location for the Goods is not the Supplier’s premises:
4.2.1 the Supplier shall deliver the Goods to the Delivery Location on the Delivery Date;
4.2.2 delivery is completed when the Goods arrive at the Delivery Location (and before they are unloaded);
4.2.3 where the Delivery Location is anywhere other than the Supplier’s premises, the Customer shall at its own cost provide at the Delivery Location adequate and appropriate equipment and manual labour for unloading the Goods;
4.2.4 the Buyer is solely responsible for off-loading the Goods into the correct storage area.
4.3 The Supplier may deliver the Goods by instalments, which may be invoiced and paid for separately. Where the Goods are to be delivered by instalments, they may be invoiced and paid for separately.
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. The Supplier may deliver the Goods in advance of the Delivery Date on giving reasonable notice to the Customer.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to a full refund of any amount paid by the Customer to the Supplier towards the price of the Goods or a credit note for that amount. 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.
4.6 Where delivery of the Goods is agreed to be by instalments or the Supplier exercises its right to deliver by instalments under clause 4.3 and there is a delay in the delivery of any one or more instalments for any reason whatsoever, this will not entitle the Customer to claim damages or to terminate the Contract.
4.7 If the Customer fails to take delivery of the Goods on the Delivery Date, then, except where such failure or delay is caused by the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Delivery Date; and
(b) the Supplier may 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 accepted delivery of them, 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 (and any other charges stated on the Order) or charge the Customer for any shortfall below the price of the Goods (and any other charges stated on the Order).
4.9 Each delivery of the Goods shall be accompanied by a delivery note from the Supplier showing the despatch date, the Supplier’s order number, the Customer’s order number, the product description and product codes of the Goods, and quantity of Goods.
4.10 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 10% more or less than the quantity of Goods ordered (by reference to weight), but a pro rata adjustment shall be made to the Order invoice at the time of despatch of the Goods.
4.11 The quantity of any consignment of Goods as recorded by the Supplier upon despatch shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence to the contrary.
- The Supplier warrants that:
- on delivery it has title to and the unencumbered right to sell the Goods; and
- the Goods shall be free from material defects in material and workmanship; and
- the Goods shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
- the Customer gives notice in writing to the Supplier within seven (7) working days following delivery of the Goods that some or all of the Goods do not comply with the warranty set out in clause 5.1;
- the Supplier is given a reasonable opportunity of examining such Goods; and
- 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, where the Goods are defective refund the Customer’s reasonable cost of returning the Goods under clause 5.6(c) and at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. For the avoidance of doubt, the Supplier may at its discretion, as an alternative to requesting that the Customer returns the Goods to the Supplier’s place of business, request that the Customer sets the Goods aside so that the Supplier may either inspect the Goods at the Customer’s place of business or collect the Goods with a view to inspecting them at the Supplier’s place of business.
- The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
- the Goods have been used;
- the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
- the defect arises as a result of the Supplier following any drawing, bills of quantities, design or Specification supplied by or on behalf of the Customer;
- the Customer alters or repairs such Goods without the written consent of the Supplier;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the defect in the Goods arises out of any other act, omission, negligence or default of the Customer, its officers, employees, contractors or agents.
- It informs the Supplier of the relevant defect in writing within 7 working days of delivery of those Goods and gives the Supplier the opportunity to inspect the Goods; and
- the total price for the Goods has been paid by the due date for payment.
- The risk in the Goods shall pass to the Customer:
- in the case of Goods being collected from the Supplier’s premises, at the time when the Supplier notifies the Buyer that the Goods are available for collection; or
- in the case of Goods being delivered other than at the Supplier’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods.
- the Goods; and
- any other goods or services that the Supplier has supplied to the Customer.
- hold the Goods on a fiduciary basis as the Supplier's bailee;
- keep the Goods separate from all other goods held by the Customer and properly stored, protected and identified as the Supplier's property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2;
- give the Supplier any such information relating to the Goods as the Supplier may require from time to time; and
- allow the Supplier to enter any premises of the Customer or any third party where the Goods are stored to inspect them,
but the Customer may resell the Goods at their full market value or use the Goods in the ordinary course of its business.
- If before title to the Goods passes to the Customer;
- the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly; or
- the Customer fails to observe or perform any of its obligations under the Contract or any other contract between the Supplier and the Customer; or
- the Customer encumbers or in any way charges any of the Goods,
then, the Customer’s right to possession of the Goods shall terminate immediately and, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier, but if the Customer does so all monies owing by the Customer to the Supplier shall (without limiting any other right or remedy of the Supplier) immediately become due and payable.
- Where the Supplier is unable to determine whether any Goods are goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Supplier to the Customer in the order in which they were invoiced to the Customer.
- Price and Payment
- The price of the Goods shall be the price set out in the Order. Any deposit received by the Supplier shall be accepted by it as part payment for the Goods which deposit shall be non-refundable.
- 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:
- any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, increases in transport and fuel costs, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
- through the Customer’s failure or delay in taking delivery; or
- through any act or default on the part of the Customer, its officers, employees, contractors or agents.
- the price for the Goods is given on an EXW (Ex Works Incoterms 2010) basis where delivery takes place at the Supplier’s premises; and
- where delivery of the Goods is to be made within the United Kingdom, the price for the Goods is exclusive of any costs and charges of packaging, loading, unloading, insurance and transport the Goods, which shall be paid by the Customer.
- If the Customer becomes subject to any of the events listed in clause 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 ordered for the Customer shall become immediately due.
- For the purposes of clause 8.1, the relevant events are:
- 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;
- 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 other than (where the Customer is a company) where these events take place 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;
- (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;
- (being an individual) the Customer is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the Customer attaches or 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 its assets and such attachment or process is not discharged within 14 days;
- (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
- (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
- 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(a)to clause 8.2(h) (inclusive);
- the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
- 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; and
- (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
- Nothing in these Conditions shall limit or exclude the Supplier's liability for:
- death or personal injury caused by its negligence;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979;
- defective products under the Consumer Protection Act 1987; or
- any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
- the Supplier shall under no circumstances whatsoever 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, special or consequential loss arising under or in connection with the Contract or the use or re-sale of the Goods by the Buyer; and
- 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 not exceed the price of the Goods or £300,000 whichever is the greater.
Neither party shall 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 a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, accident, 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 shortage of raw materials from normal source of supply or default of suppliers or subcontractors.
- Export Terms
- Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall apply (subject to any special terms agreed in writing between the Customer and the Supplier) notwithstanding any other provision of these Conditions.
- The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
- Unless otherwise agreed in writing between the Customer and the Supplier, the Goods shall be delivered FOB (Free On-Board Incoterms 2010) the airport or seaport of shipment and the Supplier shall be under no obligation to give notice for insurance purposes under section 32(3) of the Sale of Goods Act 1979.
- The Customer shall be responsible for arranging for testing and inspection of the Goods at the Supplier’s place of business before shipment. The Supplier shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made before or after shipment, or in respect of any damage during transit.
- Payment of all sums due to the Supplier shall be made by irrevocable letter of credit in a form acceptable to the Supplier and opened by the Customer in favour of the Supplier and confirmed by a bank acceptable to the Supplier. However, if the Supplier has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, the Supplier may at its discretion accept other documentary or equivalent payment methods that are acceptable to the Supplier.
- Intellectual Property
- The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to 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 and 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 manufacture or sale or re-sale of the Goods made to the specification or requirements of the Customer or the Supplier’s use of the Customer Materials to manufacture and / or supply the Goods; and
- any defect in the Goods arising from any Customer Materials.
The Supplier does not undertake to hold stocks or (save where they are Goods forming part of an Order) manufacture particular products for the Customer. The Supplier shall, however, be happy to consider the Customer’s stock requirements with a view to holding and / or manufacturing stock on such terms as may be expressly agreed in writing by authorised representatives of the Supplier and the Customer from time to time.
- Assignment and subcontracting
The Contract is personal to the Customer and 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.
- Any notice or other communication given to a party under or in connection with the Contract shall be in English and in writing, addressed to that party at its registered office or its principal place of business or such other address as may at the relevant time have been notified by the relevant party in writing in accordance with this clause and such notice shall be delivered by hand, by first class or overseas post, by e-mail or by fax.
- Notice served by hand or by fax shall be deemed to be served immediately PROVIDED THAT in the case of notices served by fax, a successful fax transmission receipt is obtained and, in the case of notices by e-mail, receipt is acknowledged by the receiving party within 2 Business Days of the e-mail being sent. Notices by first class post shall be deemed served on the second Business Day after posting if sent to a UK address or 5 Business Days after posting if sent to an overseas address.
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- 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.
- 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.