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Written by Super User
Category: Uncategorised
Published: 12 January 2016
1. DEFINITIONS
In these conditions of business (the “Conditions”):
“the Seller” means the Globalex company specified to the Buyer, including, without limitation, in relevant Globalex
despatch note or invoice.
“the Buyer” means the person, firm or company buying goods from the Seller.
“Goods” means the items forming the subject matter of the contract between the Seller and the Buyer.
“Parties” means the Seller and the Buyer.
“Order” means the Buyers instructions to the Seller to supply the Goods.
“Containers” includes crates, boxes, drums, beams and other vessels in which Goods are packed for delivery.
“Sellers Recommendations for Use” means the Sellers Recommendation for use (if any) contained in the Sellers published
literature current at the time of the contract.
“Contract” means the agreement for sale and purchase of the Goods.
Clause headings are for information only and shall not affect (nor be treated or interpreted so as to affect) construction of
these Conditions.
2. INCORPORATION OF CONDITIONS
2.1. The Seller shall sell and the Buyer shall purchase the Goods subject to these Conditions, which shall apply to each Contract.
Acceptance by the Buyer of the delivery of Goods shall (without prejudice to condition 3 or any other manner in which
evidence of incorporation of these conditions is evidenced) be deemed to constitute unqualified acceptance of the
Conditions.
2.2. These Conditions shall override any other terms or conditions stipulated or referred to by the Buyer, whether in the order or
any document issued by the Buyer or in any negotiations, and so that these Conditions of Sale are the only terms or conditions
upon which the Seller sells or supplies the Goods.
2.3. No Variation of the Conditions shall be effective unless made in writing and signed by a duly authorized representative of the
Seller.
3. ACCEPTANCE OF ORDERS
3.1. Without limitation, a quotation, a price list or any other price display prepared or disseminated by the Seller does not
constitute an offer by the Seller. The Seller reserves the right to withdraw or revise an offer at any time prior to its
acceptance of an Order (the “Acceptance”)
3.2. An Acceptance by the Seller pursuant to Condition 3.1 shall only be effective where it is in either writing or signed by the
Sellers authorized representative or in the event a delivery is made pursuant to an Order such delivery will constitute
unqualified Acceptance.
3.3. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order submitted by the Buyer.
3.4. Supply of the Goods pursuant to each Order is subject to availability of the Goods at the time of despatch.
3.5. The Seller has the right to impose a delivery charge of £30 on any Order of less than £200 (excluding VAT).
3.6. Each Order and Acceptance constitutes a separate Contract between the parties. Where the Goods are supplied by
instalments each instalment shall be deemed to be the subject of a separate Contract.
3.7. The Seller reserves the right to refuse to supply the goods to the Buyer at any time until it is satisfied that the Buyer possesses
all regulatory approvals and has in place adequate emergency plan to ensure that it can successfully carry out a product
recall which may be required by the regulatory authorities or reasonably required by the Seller.
4. PRICES
4.1. Prices are quoted by the Seller exclusive of Value Added Tax and other applicable taxes or duties and the cost of any import
or other licences or clearances and, unless otherwise specified, inclusive of delivery charges(provided the time and place of
such delivery has been agreed in advance by the Seller).
4.2. Where at the Buyers request the Seller undertakes urgent delivery, the Seller reserves the right to make an exceptional
charge for delivery irrespective of the value of the Order in question.
4.3. In the event where the Acceptance sets out a delivery schedule which provides for the delivery to be made in whole or in part
on a date falling two weeks or more from the date of Acceptance the Seller may at any time before delivery vary the price of
the Goods by notice to the Buyer provided such notice is given to the Buyer on a date falling no later than the date falling ten
days prior to the date of delivery. The Buyer may within one week of receipt of such notice cancel the Order for the Goods,
but if delivery of the Goods is to be made by instalments the Buyer shall be entitled to cancel only the undelivered portion of
the Order. No other remedy shall be available to the Buyer in respect of such variation in price. If the Buyer shall not make any
such cancellation within such one week prior period the varied price shall apply to the Contract except as regards those of
the Goods already delivered when the variation is made.
5. PAYMENT
5.1. Unless otherwise agreed in accordance with Clause 2.3, payment for the Goods is due on or before the twentieth day of the
calendar month following the date of the invoice issued by the Seller for the Goods (“the due date for payment”) and the time
of payment is of the essence.
5.2. Payment shall be deemed not to have been made until the Seller has received all sums payable in cleared funds and the Buyer
is not entitled by reason of any set-off, counterclaim, abatement or analogous deduction to withhold payment by any amount
due to the Seller.
5.3. If the Buyer fails to make any payment on the due date then, without prejudice to any other of its rights, the Seller shall be
entitled to:-
5.3.1. cancel any Contract and/or suspend any further deliveries to the Buyer; and
5.3.2. charge interest on payments outstanding after the due date for payment at the rate (both before and after judgment)
of four percent per annum above LIBOR in force on the due date for payment or eight percent per annum, whichever
shall be higher, calculated on the outstanding balance (including interest) due from the due date for payment until
receipt by the Seller of payment in cleared funds. The Seller reserves the right to reduce or cancel the amount of
interest payable under this Clause 5.3.2 and the Buyer acknowledges that any such reduction or cancellation for
whatever reason shall not amount to a waiver of Seller rights or a course of conduct varying the terms of these
conditions.
6. DELIVERY
6.1. Any dates, times or periods for delivery of Goods quoted by the Seller are estimates only and the Seller shall not be liable for
the failure to meet such estimates or for any costs, charges or expenses incurred a consequence of such failure. As a result,
the Buyer shall not be entitled to refuse to accept Goods or to terminate any Contract merely because of such failure.
6.2. Delivery shall take place:
6.2.1. where the Seller undertakes delivery, when the Goods are loaded off the Sellers medium of transport at the station,
port or address specified by the Buyer; or
6.2.2. where the Buyer undertakes to collect the Goods, when they are loaded onto the Buyers vehicle or other transport at
the address of the Seller.
6.3. The Goods shall be at the Buyers risk from the time of delivery as defined in Clause 6.2 or, if earlier, when the Goods are made
available for collection by the Buyer at the Sellers premises.
6.4. The Seller shall not be liable for and the Buyer shall fully indemnify the Seller against any and all costs, charges and expenses
incurred due to delay in delivery of the Goods where such delay is as a result of the Buyers failure to provide as and when
requested by the Seller all instructions, licences, guarantees, deposits and all such information and other assistance as may be
reasonably required by the Seller.
7. QUANTITIES
7.1. Where the Seller’s literature indicates that certain Goods are supplied in packages of a minimum number, such Goods will only
be supplied in multiples of such minimum number. Any Order which is not for such a multiple will be grossed up to the nearest
such multiple and supplied and invoiced as such.
7.2. In the case of non-packaged Goods, the Seller shall be entitled to deliver against an Order up to 10%more or less than the
weight or volume ordered. Where the quantity of Goods delivered by the Seller is more or less than the quantity ordered (and
the amount of the shortfall or excess has been identified by the Seller and the Buyer), the Seller shall invoice the Buyer for the
quantity ordered and shall subsequently:-
7.2.1. issue the Buyer with a credit note in respect of any shortfall in the amount actually delivered against the Order
quantity; or
7.2.2. issue the Buyer with an additional invoice in respect of any excess in the amount actually delivered against the Order
quantity and that invoice shall be payable by the Buyer in accordance with Clause 5. The quantity actually delivered will
be stated in the delivery note.
8. LOSS, DAMAGE OR NON-DELIVERY
8.1. Where the Buyer agrees to collect the Goods, the Seller shall not in any circumstances be liable for any damage from
whatever cause which arises while the Goods are in transit.
8.2. The Buyer shall inspect the Goods immediately on delivery (as defined in Clause 6.2) and shall have no claim in respect of any
shortage in quantity or defect within three days of delivery. If the Buyer does not notify the Seller accordingly, the Buyer shall
not be entitled to reject the Goods and the Seller shall have no liability for such shortage or defect, and the Buyer shall be
bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.3. Where the Buyer claims that any Goods are damaged or defective, the Buyer must retain the Goods for the Sellers inspection.
Such inspection will be carried out by the Seller within 14 days of receipt by the Seller notification of the damage or defect.
9. WARRANTY
9.1. Subject to the provision of this Clause 9, the Seller warrants that the goods are of satisfactory quality provided that the Seller
shall have no liability under this warranty:-
9.1.1. In respect of any defect in the Goods arising from:
1) fair wear and tear
2) wilful damage
3) negligence
4) abnormal use or working conditions
5) misuse or alteration of the Goods without the Sellers approval; or
9.1.2. if the total price for the goods has not been paid by the due date for payment.
9.2. Prior to its use or supply of any Goods, the Buyer shall carry out its own examination, investigation and tests in relation to the
Goods to ensure that they are suitable for the Buyers intended purposes and applications. Immediately upon discovery of any
defects in the Goods and in any event, within reasonable period after delivery, the Buyer shall notify the Seller specifying the
defect identified. The Buyer shall retain the Goods for the Sellers inspection. The Seller shall have no liability for defects which
are not notified to it in accordance with this Clause 9.2 or which are notified to it after the end of the Sellers recommended
shelf life for the relevant Goods.
9.3. Except as set out in Clause 9.1 or in any other warranty (or guarantee) given in writing by the Seller in connection with the
sale of any specific Goods, all other conditions, guarantees or warranties whether express or implied by statute, common law
or otherwise (including warranty as to the non-infringement of third party intellectual property rights), are hereby excluded to
the fullest extent permitted by law.
9.4. The Seller shall not be liable to the Buyer by reason of representation (unless fraudulent), any implied warranty, condition or
other term, any duty at common law or under the Contract, for any loss of profit, loss of data, loss of contracts, loss of
production or any indirect, special or consequential loss or damage.
9.5. Notwithstanding any other provision of these Conditions, the entire liability of the Seller in relation to any Goods and/or any
associated advice or services, whether by reason of any representation (unless fraudulent) or any implied warranty, condition
or other term or any duty at common law or under the Contract shall not exceed the lower of either (i)£100,000 or (ii) the
price of the relevant goods.
10. RETENTION OF TITLE
10.1. Notwithstanding delivery and the passing of risk in the Goods under Clause 6, the Goods shall remain the absolute property of
the Seller until payment of all amounts invoiced by the Seller to the Buyer and outstanding from time to time, or until the
Goods are processed or re-sold by the Buyer in the normal course of the Buyers business, whichever shall first occur.
10.2. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the goods on behalf of the Seller in a
fiduciary capacity and shall:
10.2.1. not allow the Goods to become the subject to any charge or lien or other third party interest;
10.2.2. keep and maintain the Goods in a good and stable condition (at no cost to the Seller) and store the Goods until they
have been paid for and processed and/or re-sold in the normal course of the Buyers business in such a way that they
are readily identifiable as the property of the Seller;
10.2.3. maintain comprehensive insurance cover in respect of the Goods to the full replacement value against all risks and if
required prove to the Seller that such insurance has been effected;
10.2.4. at the Sellers request, deliver up the Goods to the Seller, and, if the Buyer fails to do so straight away, permit the Seller
to enter upon the premises of the Buyer with such transport as may be necessary and re-possess any Goods to which
the Seller has title.
10.3. In the event that the Buyer processes or resells the Goods in the normal course of the Buyers business, if requested by the
Seller, the Buyer shall assign to the Seller any right or claim of the Buyer over any third party in respect of the Goods and
impose upon any third party the same restrictions as are imposed upon the Buyer by this clause 10. In addition, in such
circumstances the Buyer will hold all monies received from the Buyer from such dealings in trust for the Seller.
10.4. Where the Buyer is situated in Scotland and the delivery of Goods is made in Scotland then Clause 10.1 to 10.3 shall not apply
but notwithstanding delivery the Goods shall remain the absolute property of the Seller until the purchase price of the Goods
has been paid in full by the Buyer.
11. FORCE MAJEURE
11.1. The Seller shall not be liable in any way for any loss or damage arising directly or indirectly as a result of delivery of the Goods
being prevented or delayed by events due to the Buyer or by any reason of any matters or events beyond reasonable control
of the Seller including (but without limitation):
11.1.1. acts of war, terrorism or sabotage, government action or riots
11.1.2. lockouts, strikes or industrial action, wherever taking place, shortage of labour, raw materials, fuel or power as a result
of non-delivery or any other cause, lack of transport breakdowns, accidents to machinery or late provision to the Seller
of any materials, information, or instruction pertinent to the fulfilment of the Contract by the Seller; and
11.1.3. Act of God, accidents, fire, flood or storms and in these circumstances the Seller expressly reserves the right to cancel
or suspend the whole or any part of the Contract or any delivery.
12. BUYERS UNDERTAKINGS
12.1. The Buyer undertakes to use, handle and store the Goods in accordance with the Sellers Recommendations for Use and all
relevant statutory provisions and notify any person to whom it passes the Goods of the need to comply with such
Recommendations for Use.
12.2. The Buyer will at all times Indemnify the Seller in respect of all loss, damage and expenses suffered, occurred or paid by the
Seller or any affiliated company of the Seller as a result of any claims brought by third parties in connection with the Buyers
use of the Goods otherwise than in accordance with the Sellers Recommendation for Use.
13. ASSIGNMENT
13.1. Each Contract is personal to the Buyer and the Buyer shall not assign or change the benefit of any Contract without the Sellers
prior written consent.
13.2. The Seller is a member of a group of companies and accordingly the Seller shall be entitled to assign any Contract to any
member of its group without the need for the consent of Buyer and, in the event of such assignment, the Buyer shall execute
such documents as the Seller may request to ensure that the benefit and the burden of the Contract is properly transferred to
the Sellers group company.
14. DEFAULT OR INSOLVENCY OF BUYER
14.1. If the Buyer shall breach any of these Conditions or any other of its obligations to the Seller, or suffers any judgment or any
distress, seizure or executions levied against it, or if the Buyer makes or offers any arrangement or composition with creditors,
or commits any act of bankruptcy, or if any petition or receiving order shall be presented or made against it, or if the Buyer is
a limited company and any winding up resolution or petition (other than for the purpose of solvent amalgamation or
reconstruction) shall be passed or presented, or if a receiver, administrator, or administrative receiver is appointed over its
undertaking property or assets or any part, or if the Buyer ceases to trade, or if the Seller reasonably apprehends that any of
the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly, then without
prejudice to any other right or remedy available to the Seller the Seller may without notice:
14.1.1. cancel suspend or terminate any Contract or any unfulfilled part of any Contract
14.1.2. halt any Goods in transit and decline to make further deliveries except upon receipt of advance payment or
satisfactory security and/or
14.1.3. either by an agent or itself have access to the Buyers premises for the protection, removal, realization and disposal of
any Goods at any time and from time to time in which the property shall not have passed from the Seller to the Buyer.
14.2. The granting by the Seller to the Buyer of time or any other relief or concession shall in no way prejudice or constitute a
waiver of the Sellers entitlement to enforce any of its rights under the Contract or these Conditions (except and to the extent
that it shall constitute a variation of these Conditions which has been made in accordance with Clause 2.3)
14.3. If the Seller terminates any Contract in accordance with this Clause 14, then, without prejudice to any other rights the Seller
may have, it shall be entitled to retain any advance payment made by the Buyer.
15. NOTICES
15.1. All notices shall be in writing and sent by first class post, fax or email and shall be effective from the time received.
15.2. Notices shall be deemed to have been received:
15.2.1. if sent by first class post, two working days after posting in proving such service it shall be sufficient to show that the
envelope was put in the post and properly addressed to the Buyers or Sellers address as shown on the Order or
Acceptance failing that to the address at which one party reasonably believes the other to be carrying on business;
15.2.2. If sent by email or fax, the next working day after transmission provided that the email or fax is sent to the appropriate
Company Secretary or other such appropriate person as is identified for such purpose in the Order or Acceptance.
16. PROPER LAW
The validity, construction and performance of the Contract shall be governed by the Law of Estonia and the parties
hereby submit to the exclusive jurisdiction of the courts of Estonia for the resolution of all disputes arising under the
Contract.
17. SEVERANCE
If any other provision of these Conditions and/or any Contract is declared void or otherwise unenforceable then the provision
shall be omitted and the remaining provisions of this Agreement shall continue in full force and effect.
