General Conditions of Sale (2016)

1. INTERPRETATION

In these terms and conditions, the following words and phrases shall have the following meanings:

  • ‘Agreement’ means any agreement between the Seller and the Buyer for the sale by the Seller to the Buyer of the Product incorporating these Conditions.
  • ‘Buyer’ means the buyer of the Product supplied by the Seller pursuant to an Agreement.
  • Conditions’ means these terms and conditions as amended by the Seller from time to time.
  • ‘Product’ means any chemical product or combination of chemical products (including any mixture of chemical products) or other goods agreed to be supplied to the Buyer by the Seller (including any part of them) and shall include any containers in which the Product is supplied unless otherwise agreed.
  • ‘Seller’ means Lambson Limited (Company number 02838052) whose registered office is at Clifford House, York Road, Wetherby, West Yorkshire, LS22 7NS, England.
  • ‘Working Day’ means any the day of the week from Monday to Friday unless declared a public holiday or bank holiday by the UK government.
  • In these Conditions, reference to any statute or statutory provision shall be construed as a reference to such statute or statutory provision as amended, modified, re-enacted or replaced from time to time.
  • The headings do not affect the interpretation of these Conditions.

2. AGREEMENT

  • Any Agreement shall be on these Conditions to the exclusion of all other terms and conditions, including any terms and conditions that are purported to be included or applied by the Buyer.
  • No terms and conditions contained in the confirmation of order, purchase order or other document received from the Buyer will form part of the Agreement.
  • The Buyer acknowledges that no reliance has been placed upon on any statement, promise or representation made or given by the Seller which is not set out in the Agreement. Nothing in this Condition shall exclude or limit liability for fraudulent misrepresentation.
  • The Seller reserves the right to revise and amend these Conditions from time to time.

3. PRICE

  • The price for the Product shall (subject to Condition 3.3) be the price set out on the confirmation of order for the Product.
  • The price for the Product shall (unless otherwise stated) be exclusive of all costs of carriage and insurance and applicable VAT which the Buyer shall pay in addition.
  • The price for the Product is the Seller’s price on the date of the confirmation of order but may be varied by notice in writing to the Buyer. Such varied price shall apply to Product delivered after service of such notice unless the Buyer considers such variation unreasonable and gives notice in writing to the Seller cancelling the Agreement within 1 Working Day of the Seller’s notice varying the price. Upon the Buyer serving notice cancelling the Agreement pursuant to this Condition 3 neither party shall be under liability to the other save for any liability accrued at the date of cancellation or under any other Agreement.

4. DELIVERY

  • Delivery dates for the Product in the Agreement are given in good faith but are estimates only and no liability whatsoever can be accepted by the Seller for delays in delivery howsoever caused. The Buyer shall not be entitled to refuse to accept the Product by reason of any delay in delivery unless specifically agreed with the Seller.
  • Each delivery of Product shall constitute a separate Agreement.
  • The Buyer shall treat any delivery, which the Seller procures to be made on its behalf, as a delivery.
  • The Seller reserves the right to make deliveries in instalments.
  • Notification of Product received damaged or incomplete must be made to the Seller within 3 Working Days of delivery.
  • In the case of deliveries made from tankers or storage installations, the amount shown by the meters or dip sticks or other measuring or weighing equipment used by the Seller or carriers as the case may be, shall be conclusive evidence of the quantity delivered.

5. PASSING OF PROPERTY AND RISK

  • Ownership of the Product shall pass to the Buyer on full payment being received by the Seller into its bank account of all sums due in respect of the Product for any delivery.
  • Risk in the Product passes to the Buyer on delivery.
  • Delivery occurs:-
    • In the case of Product collected from the Seller, when the drums or other containers are loaded onto the collecting vehicle or when the Product has passed the delivery line of the Seller’s premises;
    • In the case of Product delivered to an address in the United Kingdom or elsewhere, when the drums or other containers are removed from the transporting vehicle at such address or where the Product has passed out of the flexible hose or delivery line of such vehicle;
    • In the case of Product delivered F.O.B or C.I.F when the drums or other containers have passed over the ship’s rail.
  • Where it is agreed that the Product shall be collected by the Buyer notwithstanding that the Agreement provides that the Seller shall deliver, delivery of the Product so collected shall occur as provided in Condition 5.3.1 above.
  • Until ownership of the Product has passed to the Buyer, the Buyer shall:
    • hold the Product on a fiduciary basis as the bailee of the Seller;
    • store the Product separately from all other goods of the Buyer or any third party in such a way that they remain identifiable as the Seller’s property;
    • not destroy or deface any identifying mark on the drums or containers holding the Product;
    • maintain the Product in satisfactory condition and  insured against damage or destruction for usual risks and hold any proceeds of such insurance on trust for the Seller.

6. PAYMENT

  • Payment for the Product shall be due 30 days from the date of invoice unless otherwise agreed in writing.
  • Notwithstanding Condition 6.1, prior to accepting any order, the Seller may require the Buyer to make payment in advance of delivery or to provide adequate security for the payment of all amounts due or to become due under the Agreement.
  • The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

7. SELLER’S WARRANTY

  • The Seller warrants that the Product will comply with the specification or description given in the Agreement. In the absence of such specification or description the Product shall be of satisfactory quality and reasonably fit for the purposes for which such products are commonly supplied. .
  • Save as provided in this Condition, no other representation, warranty, condition or term, express or implied, statutory or otherwise as to the quality of the Product, its fitness for any purpose or compliance with any sample or description or in any other respect shall apply to the Product or any other provision of this Agreement .
  • Unless otherwise agreed in writing, the Seller does not represent or warrant that the Product does not infringe any patent, trademarks, registered designs or any other intellectual property rights of a third party and will not be liable to indemnify the Buyer in such event.

8. SELLER’S LIABILITY

  • The Seller shall not be responsible for any injury loss or damage, howsoever caused, arising directly or indirectly from the storage, application, or use of the Product. Any representation, advice or recommendation given by the Seller, its servants or agents as to the mode of storing, applying or using the Product should be adhered to by the Buyer, its servants or agents but is given without liability on the part of the Seller its servants or agents.
  • The Seller’s liability for any loss or damage resulting to the Buyer from any defect in the Product or from any cause whatsoever shall be limited to the agreed price of the Product, unless the Seller shall have replaced such defective Product with Product conforming in all respects with the Agreement, in which event the Seller shall be under no further liability to the Buyer.
  • If any statutory provision shall avoid or make unenforceable any of the provisions of Conditions 8.1 and 8.2 such provisions shall still be applicable but only to the extent allowed by statute.
  • Nothing in these Conditions excludes or limits the Seller’s liability:
    • for death or personal injury caused by the Seller’s negligence; or
    • for any matter for which it would be illegal for the Seller to exclude or attempt to exclude liability; or
    • for fraud or fraudulent misrepresentation.

9. TERMINATION OF THE AGREEMENT

  • If at any time:
    • Any sum of money due under the Agreement from the Buyer to the Seller shall have been due and unpaid for 21 days; or
    • The Buyer shall be in breach of any other terms of the Agreement; or
    • The Buyer is unable to meet its obligations as they fall due, or is insolvent or (being an individual) shall have committed any act of bankruptcy or (being a company) shall enter into liquidation (other than a voluntary liquidation for the purpose of reconstruction of amalgamation in terms previously approved in writing by the Seller) or shall have had a receiver appointed or execution levied over any of its assets:
      • the Seller may, without prejudice to any other right or remedy that it may have:
        • repossess the Product;
        • terminate the Agreement forthwith; or
        • suspend further deliveries under the Agreement.
      • Should the Seller suspend deliveries, it may, at any subsequent time, terminate the Agreement. Should the Seller waive or delay its right to suspend deliveries it shall not be stopped from suspending later deliveries or from terminating the Agreement. No Agreement may be cancelled or suspended without the Seller’s written consent. Any consent so given shall be given only on the express conditions that the Seller be compensated against any loss incurred wholly or in part by that cancellation or suspension.

10. FORCE MAJEURE

  • If the Seller is subject to an event or circumstances outside its reasonable control, (‘Force Majeure Event’) it shall notify the other party and all parties obligations under the Agreement shall be suspended until the Seller notifies the Buyer that the Force Majeure Event has ended.
  • A Force Majeure Event includes (without limitation) the following:
    • strikes, lock-outs or other industrial action;
    • civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
    • fire, explosion, inclement weather, including storms, flood, earthquake, subsidence, epidemic or other natural disaster;
    • inability of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
    • impossibility of the use of public or private telecommunications networks;
    • the Website and other systems affected as a result of computer hacking or virus; and
    • the acts, decrees, legislation, regulations or restrictions of any government
  • If a Force Majeure Event occurs the Seller may (whether or not it has already suspended the Agreement) by notice in writing to the Buyer cancel the Agreement in whole or as to any unfulfilled part.

11. PACKAGING AND MARKING

  • Whilst it is intended that the drums or containers shall bear a description of the Product contained therein, the Buyer is responsible at the time of delivery for checking that the drums or containers are marked to its satisfaction.
  • Unless otherwise agreed in writing with the Seller all drums and other containers are non­returnable. If any drum or container is returnable, the Buyer must ensure that it is not used for any other purpose than storage of the Product supplied. Any drum or container that is returnable must be returned to the Seller in good condition, as soon as possible, carriage paid to an address indicated by the Seller.

12. BUYER’S OBLIGATIONS

  • Where delivery of the Product is to a storage tank or other means of storage directed by the Buyer, it shall be the sole responsibility of the Buyer to ensure that in every such case the storage facility shall be suitable, of sufficient capacity and meets any specification recommended by the Seller for the delivery of the Product and they do not contain any other product with a different specification to the Product.
  • Notification of Product received damaged, defective or incomplete must be made to the Seller within 3 Working Days of delivery otherwise the Product delivered will be deemed to comply with the specification or description given in the Agreement and to be of satisfactory quality and fit for the purposes for which it was supplied.
  • The Product in respect of which the Buyer notifies any claim under Condition 12.2 shall be preserved intact as delivered. The Seller or its agents shall have the right to attend the Buyer’s premises to investigate the claim. Any breach of this condition shall preclude the Buyer from making any claim against the Seller in respect of any defect in the Product and from refusing to accept and pay for the Product.
  • The specifications including the copyright, design right and other intellectual property in the Product shall, as between the parties, be the property of the Seller. Where any designs or specifications have been supplied by or to the order of the Buyer, then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly, supply, packaging or labelling of the Product shall not infringe the rights of any third party.
  • The Buyer shall indemnify the Seller and hold it harmless against the consequences of any failure on part of the Buyer to comply with this Condition 12.

13. SELLER’S MARKS

The Buyer shall not, in selling the Product or in promoting it for sale, make any reference to the Seller, or to any of the Seller’s trademarks or brand names without the Seller’s written consent.

14. HEALTH AND SAFETY

  • The Product is sold strictly on the basis that the Buyer will comply with the care and handling recommendations supplied by the Seller or the manufacturer of the Product, or failing receipt of such recommendations, that the Buyer will follow the highest standards of care adopted by the trade in respect of such Product.
  • If the Buyer is not in possession of literature or information in connection with the safe use of the Product then the Buyer must request such information from the Seller.

15. ASSIGNMENT

  • Subject to clause 15.3.2, the Buyer may not assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the Seller.
  • The Buyer may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the Seller to be bound by the obligations of the Buyer under this Agreement.

16. THIRD PARTIES

  • For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to, and does not, confer on any person who is not a party to this Agreement:
    • any right to enforce any of its provisions; or
    • any right to avail itself of any defence expressed in this Agreement.

17. NOTICES

  • Any notice required to be given under the Agreement shall be in writing and sent to the party for whom it is intended at the address stated in the Agreement or to such other address in the United Kingdom as that party may notify in writing.
  • Such notice shall be sent by first class post, by airmail, by fax or by email (confirmed by first-class mail or air mail), to the address of the relevant party set out in the Agreement.
  • All such notices by post shall be deemed delivered 3 working days after sending; in the case of fax messages, on the next working day after transmission (confirmed by a transmission report that all pages were successfully transmitted); or in the case of email, when the email first appears in the inbox of any email system that can reasonably be assumed to be used by the recipient.

18. ARBITRATION

  • Any dispute or difference between the parties in connection with this agreement shall be referred to 2 arbitrators in accordance with the Arbitration Act 1996.
  • The arbitration shall be held in London, England.
  • Each party shall appoint one arbitrator. The arbitrators so appointed shall forthwith appoint an umpire. The umpire shall attend all hearings, including preliminary meetings, but shall act only if the arbitrators appointed by the parties fail to agree.
  • A party who has appointed an arbitrator shall be entitled to appoint that arbitrator to act as sole arbitrator in the reference if:
    • that party serves the other party with a notice to appoint one arbitrator and
    • the other party fails to appoint an arbitrator within 7 clear days of service.
  • The procedure shall be agreed by the parties or, failing agreement, determined by the arbitrators or, if necessary, by the umpire
  • If either party fails to comply with any procedural order made by the arbitrators or umpire, the arbitrators or umpire shall have power to proceed in the absence of that party and to deliver the award.

19. LAW

The validity, construction and performance of this Agreement and of all other rights and liabilities arising in connection with this Agreement shall be governed by English law.