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1. Definitions
1.1 In these conditions (unless the context otherwise requires):
(a) “Buyer” means the person, firm or company with whom the Contract is made;
(b) “Company”, means Akzo Nobel Industrial Coatings Limited and also (where the
context so permits) its assigns and any sub-contractor for the said company;
(c) “Company’s Premises” means the premises mentioned in the Company’s
quotation or other contractual document in respect of the Goods or if not so mentioned means
the Company’s premises at Darwen.
(d) “Contract” means the contract between the Buyer and the Company for the sale
and purchase of the Goods and/or the provision of the Services;
(e) “Goods” means the goods (or any instalment or part of them) to be supplied
pursuant to the Contract;
(f) “Services” means the services to be performed pursuant to the Contract.
1.2 Words in the singular shall include the plural and vice versa, references to any gender
shall include the others and references to legal persons shall include natural persons and
vice versa.
1.3 The headings in these conditions are intended for reference only and shall not affect
their construction.
2. General
2.1 These conditions shall apply to the Contract to the exclusion of any other terms and conditions
contained or referred to in any order, letter, form or contract or other communication sent
by the Buyer to the Company and the provisions of these conditions shall prevail unless expressly
varied in writing and signed by a director on the Company’s behalf.
2.2 Any concession made or latitude allowed by the Company to the Buyer shall not affect the
strict rights of the Company under the Contract.
2.3 If in any particular case any of these conditions shall be or be held to be invalid or
shall not apply to the Contract the other conditions shall continue in full force and effect.
3. Orders
3.1 Notwithstanding that the Company may have given a detailed quotation no order shall be
binding on the Company unless and until it has been accepted in writing by the Company. Until
the Contract is made, the Company may withdraw or amend any quotation as it shall decide in
its absolute discretion and without liability.
4. Prices
4.1 Unless otherwise agreed by the Company in writing:
(a) the price payable for Goods and/or the Services shall be the list price of the Company
current at the date of delivery or performance;
(b) in the case of an order for delivery of the Goods by instalments or for the performance
of services on separate occasions the price payable for each instalment of the Goods or performance
of the Services shall be the list price of the Company current at the date of delivery of
such instalment or performance;
(c) the Company’s prices are subject to adjustment to take account of any variation
in the Company’s costs including (but not limited to) variations in wages, the cost
of materials, exchange rate fluctuations, alteration of duties and other costs since the date
of the Company’s quotation or (if no quotation is issued) the Buyer’s order. The
Company accordingly reserves the right to adjust the invoice price by the amount of any increase
or decrease in such costs after the price is quoted and the invoice so adjusted shall be payable
as if the price set out therein were the original contract price.
4.2 All prices are exclusive of value added tax and this will be charged by the Company and
will be payable by the Buyer at the appropriate rate.
5. Additional costs
5.1 The Buyer shall indemnify the Company in respect of any loss, cost or expense incurred
by the Company as a result, directly or indirectly, of the Buyer’s instructions or lack
of instructions or through any failure or delay whatsoever in taking delivery of Goods or
permitting performance of Services or through any other act, neglect or default on the part
of the Buyer, its servants, agents or employees.
6. Intellectual property
6.1 The Buyer shall indemnify the Company against all costs, claims, losses, expenses and
damages incurred by the Company or for which it may be liable due to or arising directly or
indirectly out of any infringement or alleged infringement of patents, trade marks, copyright,
design right or other intellectual property right occasioned by the importation, manufacture
or sale of the Goods or performance of the Services if made or performed to the specification
or special requirements of the Buyer.
7. Terms of payment
7.1 Unless otherwise agreed in writing, the Buyer shall pay for the Goods and/or the Services
in cash not later than the end of the month next following the month of the date of the invoice
save that payment shall become due in any event forthwith upon the occurrence of any of the
events referred to in condition 19 of these conditions.
7.2 If the Goods are delivered in instalments or the Service’s are performed on separate
occasions the Company shall be entitled to invoice each instalment and/or performance as and
when delivery of the instalment has been made or Services have been performed and payment
shall be due in respect of each instalment notwithstanding non-delivery of other instalments
or non-performance or other default on the Company’s part.
7.3 If upon the terms of the Contract the price shall be payable by instalments or if the
Buyer has agreed to take specified quantities of Goods or to accept performance of Services
at specified times, a default by the Buyer in the payment of any due instalment or the failure
to give delivery instructions in respect of any quantity of Goods or any instructions regarding
the performance of Services outstanding shall cause the whole of the balance of the price
to become due forthwith.
7.4 The price of the Goods and/or the services shall be due in full to the Company in accordance
with the terms of the Contract and the Buyer shall not be entitled to exercise any set-off,
lien or any other similar right or claim.
7.5 The time of payment shall be of the essence of the Contract.
7.6 Without prejudice to any other rights it may have the Company is entitled (both before
and after any judgement) to charge interest at a rate equal to the higher of the interest
rate payable on court judgements or 3% above the base rate from time to time of Barclays Bank
plc on overdue payments of the price of the Goods and/or Services of the price of any instalments
of the Goods and/or the Services.
8. Delivery
8.1 All times, dates or periods given for delivery of the Goods and/or the performance of
the Services are given in good faith but without any responsibility on the Company’s
part.
8.2 Time of delivery of the Goods and/or performance of the Services shall not be of the essence
of the Contract.
8.3 Any period for delivery and/or performance shall be calculated from the time of the Company’s
acceptance of the Buyer’s order or from the Company’s receipt of all information
necessary to enable the Company to manufacture or procure the manufacture of the Goods (whichever
shall be the later) and/or to perform the Services.
8.4 Where the Goods are handed to a carrier for carriage to the Buyer or to United Kingdom
port for export any such carrier shall be deemed to be an agent of the Company and not of
the Buyer for the purposes of sections 44, 45 and 46 of the Sales of Goods Act 1979.
8.5 The Buyer agrees that section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods
sent by the Company.
8.6 No liability (whether in contract or for negligence or otherwise howsoever) for loss of
or damage to the Goods occurring prior to delivery or for any claim that any item delivered
and/or any Services performed and/or any item in respect of which Services have been performed
pursuant to the Contract is or are defective or is or are otherwise not in accordance with
the Contract (being a defect or loss, damage or non compliance which would be obvious upon
a reasonable inspection of the Goods or upon performance of the Services) or for non-delivery
will attach to the Company unless claims to that effect are notified in writing by the Buyer
to the Company (and in the case of claims for loss, damage or non-delivery of Goods with a
copy to the carrier if the Company’s own vehicles have not been used to deliver the
Goods):
(a) within seven days of delivery for loss, damage, defect or non-compliance with the Contract;
or
(b) within ten days of the date of the invoice for non-delivery.
8.7 In the event of a valid claim for defect, loss, damage, or non-compliance with the Contract
or non-delivery or non-performance the Company undertakes at its option either to reprocess
or replace the items concerned or to re-perform the Services at its expense but shall not
be under any further or other liability in connection with such non-delivery, loss, damage
or non-compliance.
8.8 If the Buyer shall fail to give notice in accordance with condition 8.6 above, then the
items delivered and/or the Services performed shall be deemed to be in all respects in accordance
with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound
to accept and pay for the same accordingly and all claims in respect of non-delivery, loss,
damage, defect or non-compliance shall (save as set out in condition 15 below) thereafter
be wholly barred.
8.9 If for any reason the Buyer is unable to accept delivery of the Goods at the time when
the Goods are due and ready for delivery the Company may at its sole discretion without prejudice
to its other rights and for such period as the Company may determine store the Goods at the
Buyer’s risk and take all reasonable steps to safeguard and insure them at the Buyer’s
cost, provided that the Buyer shall be immediately informed thereof.
8.10 The Company shall have the right to make delivery of the Goods by instalments of and/or
to perform the Services in such quantities and at such intervals as it may decide, and any
express provision as to instalments or performance on separate occasions in the Contract shall
be in addition to and not in derogation of this right.
8.11 The Company shall be entitled to make delivery and the Buyer shall accept delivery of
a quantity of the Goods which when measured by weight or volume exceeds or is less than the
quantity ordered by 10% or less. The Buyer will pay for the actual weight or volume delivered
pro rata on the price of the Goods.
9. Returns
9.1 Goods supplied in accordance with the Contract cannot be returned without the Company’s
prior written authorisation. Duly authorised returns shall be sent to the Company’s
Premises at the Buyer’s expense.
10. Carriage
10.1 Unless otherwise agreed by the Company in writing, the Goods will be delivered ‘FCA
the Company’s premises as defined in Incoterms (current version).
10.2 When the Buyer requests delivery in a manner other than that selected by the Company
in condition 10.1 above, the agreed terms of delivery will be in strict accordance with Incoterms
(current version).
11. Compliance with local laws
11.1 The Buyer shall be responsible for complying with any legislation or regulations governing
the importation of the Goods into and/or the performance of Services in the country of destination,
and into any country through which the Goods are transported, and for the payment of any duties
on or in respect of the importation or transportation of the Goods and/or performance of the
Services.
12. Passing of title and risk
12.1 From the time of delivery, as defined by Incoterms (current version), the Goods shall
be at the Buyer’s risk who shall be solely responsible for their custody and maintenance
but, unless otherwise expressly agreed in writing, the Goods shall remain the Company’s
property until all payments to be made by the Buyer under the Contract (whether for Goods
or Services or otherwise) and any other contract between the Company and the Buyer and on
any other account whatsoever have been made in full and unconditionally. Whilst the Company’s
ownership continues, the Buyer shall keep the Goods labelled as belonging to the Company and
separate and identifiable from all other goods in its possession as bailee for the Company.
12.2 The Buyer may only re-sell the Goods to the Buyer’s customers in the ordinary course
of the Buyer’s business as a fiduciary and trustee for the Company. In the event of
any resale by the Buyer of the Goods the Company’s beneficial entitlement shall attach
to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore
shall be assigned to the Company and until such assignment shall be held on trust in a separate
identified account for the Company by the Buyer and such proceeds shall not be mingled with
other moneys or paid into any overdrawn bank account and shall at all times be identifiable
as the Company’s moneys.
12.3 Without prejudice to the equitable rules as to tracing, in the event of failure to pay
the price in accordance with the Contract the Company shall have the power to re-sell the
Goods, such power being additional to (and not in substitution for) any other power of sale
arising by operation of law or implication or otherwise and for such purpose the Company and
its servants and agents may forthwith enter upon any premises or land occupied or owned by
the Buyer to remove the Goods.
12.4 Pending payment of the full purchase price of the Goods the Buyer shall at all times
keep the Goods comprehensively insured against loss or damage by accident, fire, theft and
other risks usually covered by insurance in the type of business carried on by the Buyer in
an amount at least equal to the balance of the price for the same from time to time remaining
outstanding. The policy shall bear an indorsement recording the Company’s interest.
13. Conditions and warranties
13.1 The Contract shall not constitute a sale by description or sample.
13.2 Any samples, illustrations or descriptive materials showing the final appearance of the
Goods shall not form part of the Contract and shall be treated by the Buyer as approximate
and for guidance only.
13.3 Any conditions or warranties (whether express or implied by statute or common law or
arising from conduct or a previous course of dealing or trade custom or usage or otherwise
howsoever) as to the quality of the Goods or their fitness for any particular purpose (even
if that purpose is made known expressly or by implication to the Company) or as to the correspondence
of the Goods with any description or sample or as to the performance of Services with reasonable
care and skill are hereby expressly negated.
14. Warnings
14.1 Where the Company supplies warnings, directions or instructions with the Goods regarding
the use of the Goods then it shall be the responsibility of the Buyer to comply with such
warnings, directions or instructions and to ensure that the same are supplied to the user
of the Goods (whether such user is the Buyer, its employees, agents or sub-contractors or
its customers or otherwise) prior to their use.
14.2 The Buyer undertakes to include the obligation in condition 14.1 in any contract it makes
with a sub-buyer of the Goods.
15. Defective Goods
15.1 In substitution for all rights which the Buyer would or might have but for these conditions
the Company undertakes in the case of Goods manufactured by the Company and/or Services performed
by the Company that if within three months of delivery of any item of the Goods and/or of
performance of the Services a defect in materials or workmanship appears therein being a defect
which would not be obvious on reasonable inspection thereof (whether such an inspection was
carried out or not) it will at its own discretion either credit the Buyer the full price paid
by the Buyer to the Company for such item and/or the Services or supply a replacement thereof
free of charge at the place of delivery specified by the Buyer for the original Goods and/or
re-perform the Services provided that in any case the original Goods and/or the Services have
been
accepted and paid for.
15.2 In the case of Goods not manufactured by the Company and/or Services not performed by
the Company, the Company will pass on to the Buyer to the extent that it is able any benefits
obtainable under any warranty given by the Company’s supplier and/or service provider
provided that the Goods and/or the Services have been accepted and paid for.
15.3 In order to exercise its rights under this condition, the Buyer shall inform the Company
within seven days of the date when such defect appeared or ought reasonably to have been discoverable
and shall send written confirmation of the claim to the Company within 3 days of any oral
notification. The Buyer shall at the Company’s written request return the defective
Goods carriage paid to the Company’s Premises.
15.4 Nothing in the Contract shall impose any liability upon the Company in respect of any
defect in the Goods and/or the Services arising from or in connection with:
(a) fair wear and tear; and/or
(b) the acts, omissions, negligence or default of the Buyer, its servants or agents including
in particular (but without prejudice to the generality of the foregoing ) any failure by the
Buyer its employees, agents, sub-contractors or customers or any third party to comply with
any warnings, directions, instructions or recommendations of the Company as to storage and
handling of the Goods and/or the use of the Goods.
15.5 Where the Goods are for delivery by instalments and/or the Services are to be performed
on separate occasions any defect in any instalment or performance shall not be a ground for
cancellation of the remainder of the instalments and/or further performance and the Buyer
shall be bound to accept delivery and/or performance thereof.
15.6 Nothing in this Contract shall have the effect of excluding or restricting the liability
of the Company for death or personal injury resulting from its negligence in so far as the
same is prohibited by United Kingdom statute.
15.7 The Buyer shall co-operate voluntarily in any claim which the Company may make against
any supplier, carrier or insurer, which co-operation shall include but not be limited to the
provision (free of charge) of witness and documentary evidence and reasonable facilities to
inspect the Goods (if the Goods have not been returned in accordance with condition 15.3 above)
and/or to inspect the performance of the Services.
16. Buyer’s specification
16.1 The Company shall not be liable for imperfect work caused by any inaccuracies in any
drawing, bill of quantities or specification supplied by the Buyer.
17. Advice
17.1 Any advice or information given by the Company to the Buyer in respect of the Goods or
the Services is given on a gratuitous basis and in good faith. The Buyer acknowledges that
it has not relied and will not rely on any such advice or information.
18. Consequential loss
18.1 The Company shall not be liable for any costs, claims, damages or expenses arising out
of any tortious act or omission or any breach of contract or statutory duty calculated by
reference to profits, income, production or accruals or loss of such profits, income, production
or accruals or by referee to accrual of such costs, claims, damages or expenses on a time
basis.
19. Default or insolvency of Buyer
19.1 If the Buyer shall be in breach of any of its obligations under the Contract or if any
distress or execution shall be levied on the Buyer’s property or assets or if the Buyer
shall make or offer to make any arrangement or composition with his creditors or commit any
act of bankruptcy or if any bankruptcy petition be presented against him or (if he Buyer is
a company) if any resolution or petition to wind up such company shall be passed or presented
or if a receiver, administrative receiver or administrator of the whole or any part of such
company’s undertaking property or assets shall be appointed or if the Buyer is unable
in response to a written request from the Company to reasonably satisfy the Company that it
is able to pay for the Goods and/or the Services or any other goods or services bought or
ordered by the Buyer from the Company (whether such Goods or Services are due for payment
or not) the Company in its discretion and without prejudice to any other right or claim may
by notice in writing determine wholly or in part any and every contract between the Company
and the `Buyer or may (without prejudice to the Company’s right subsequently to determine
the contract for the same cause should it so decide) by notice in writing suspend delivery
of any further deliveries (as the case may be) of Goods and/or performance or further performance
of the Services until any default by the Buyer is remedied.
20. Limitation of liability
20.1 The aggregate liability of the Company (whether in contract or for negligence or breach
of statutory duty or otherwise howsoever) to the Buyer for any loss or damage of whatsoever
nature and howsoever caused shall be limited to and in no circumstances shall exceed the price
of the Goods or the Services.
21. Representations
21.1 No statement, description, information, warranty, condition or recommendation contained
in any catalogue, price list, advertisement or communication or made verbally by any of the
Company’s agents or employees shall be construed to enlarge, vary or override in any
way any of these conditions.
22. Force majeure
22.1 The Company shall be entitled do delay or cancel delivery of the Goods and/or performance
of the Services or to reduce the amount of Goods delivered and/or the Services performed if
and to the extent that it is prevented from or hindered in or delayed in manufacturing, obtaining
or delivering the Goods by normal route or means of delivery and/or performing the Services
through any circumstances beyond its control including (but not limited to) strikes, lock-outs,
accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown
of plant or machinery or shortage or unavailability of raw materials from normal sources of
supply, government intervention, regulations or directives (UK or otherwise).
23. Cancellation
23.1 Save as provided in condition 19 and 22 hereof contracts may not be cancelled except
by agreement in writing of both parties and upon the payment to the Company of such amount
as may be necessary to indemnify the Company against all loss resulting from the said cancellation
which amount shall not in any event be less than a sum equal to 25% of the order price.
24. Sub-contracting
24.1 The Company may assign the Contract with the Buyer or sub-contract the whole or any part
thereof to any person, firm or company.
25. Proper law
25.1 The contract shall in all respects be governed by and construed in accordance with English
law and shall be deemed to have been made in England and the Buyer and the Company agree to
submit to the non-exclusive jurisdiction of the English courts and it is agreed that the High
Court in Manchester is a convenient forum for the hearing of any dispute.
26. Export terms
26.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this
condition 26 shall apply (subject to any special terms agreed in writing between the Buyer
and the Company) notwithstanding any other provision of these conditions.
26.2 The Buyer shall be responsible for complying with any legislation or regulations governing
the importation of the Goods into the country of destination, and into any country through
which the Goods are transported, and for the payment of any duties on or in respect of the
importation or transportation of the Goods subject to the obligations and requirements specified
in Incoterms (current version).
26.3 The Buyer shall be responsible for arranging for the testing and inspection of the Goods
at the Company’s Premises before shipment. The Company 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 after shipment, or in respect of any damage during transit.
26.4 Payment of all amounts due from the Buyer to the Company shall be in UK £ Sterling
and shall be made by (as the Company may in its sole discretion determine) cash, irrevocable
letter of credit opened by the Buyer in favour of the Company and confirmed by a bank in the
UK acceptable to the Company or, delivery to the Company of a bill of exchange drawn on the
Buyer and payable 30 days after sight to the order of the Company at such branch of Barclays
Bank Plc in England as may be specified in the bill of exchange.
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