TERMS AND CONDITIONS OF SALE
1 Definitions
1.1 In these Conditions, unless the context requires otherwise, the following expressions have the following meanings:
“Acceptance Notice” is defined at Clause 2.3 below
“Customer” means the person purchasing the Products.
“Conditions” means the standard terms and conditions of sale set out in this document.
“Contract” is defined at Clause 2.3 below.
“Order” means the Customer's order for the Products.
“Price” means the price of the Products.
“Product” means the Products (including any installment of the Products or any part of them) described in the Order.
“Supplier” means SIP Limited, a company incorporated in England and Wales (registered number 2185735 with its registered office at 12th Floor, Westminster Tower, 3 Albert Embankment, London, SE1 7SP), and any subsidiary (as defined in Section 736 of the Companies Act 1985) thereof and its successors in business and assigns.
“Writing” includes facsimile transmission and by post and "Written" shall be construed accordingly.
1.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of Sale
2.1 A quotation by the Supplier does not constitute an offer and may be withdrawn or revised at any time prior to the Supplier’s acceptance of the Order.
2.2 The Order constitutes an offer by the Customer, capable of acceptance by the Supplier, to purchase the Products subject to these Conditions.
2.3 No order shall be binding upon the Supplier unless the Supplier expressly accepts the Order by Written notice to the Customer (“Acceptance Notice”) in which case a contract (the “Contract”) will be formed, for the sale and purchase of the Products, comprising the Order, Acceptance Notice and these Conditions.
2.4 These Conditions shall apply to, and shall be part of, the Contract to the exclusion of any terms and conditions of the Customer.
2.5 No variation to the Contract shall be binding unless agreed in Writing between the authorised representatives of the Customer and the Supplier.
3. Price
The Price of the Products shall be as stated in the Supplier's applicable price list for the applicable delivery terms for the Products in effect at the date of delivery and, shall, unless specifically agreed otherwise, be exclusive of VAT and any other tax or duty which, where applicable, shall be payable by the Customer in addition to the Price.
4. Terms of Payment
4.1 The Supplier may invoice the Customer:
4.1.1 on (or after) the date the Supplier has notified the Customer that the Products are ready for collection when the Contract provides that the Products are to be collected by the Customer from the premises of the Supplier; or
4.1.2 on (or after) the date of delivery of the Products to the agreed point of delivery when the Contract provides that the Products are to be delivered to such place by the Supplier.
4.2 Unless alternative credit terms have been agreed in writing between the parties the Customer shall pay the Supplier's invoices in full, without any deduction whether by way of set off, counterclaim or otherwise no later than the 20th day of the month following:
4.2.1 the month in which the Supplier notified the Customer that the Products were ready for collection; or
4.2.2 the month in which the Products were delivered to the Customer.
4.3 The Supplier may require the Customer to pay cash on or before delivery. Such payment must be made to the Supplier’s nominated bank account (as notified to the Customer) and be available in cleared funds on or before the date of delivery.
4.4 The Supplier shall be entitled to charge interest on late payments before as well as after judgment at the rate of 5% per annum above National Westminster Bank’s base rate from time to time.
4.5 No partial payment expressed to be “in full and final settlement” shall be effective as such unless specifically agreed in Writing by an authorised representative of the Supplier.
4.6 In the event that the Customer fails to make any payment on the due date to the Supplier under the Contract or under any other contract between the Customer and the Supplier then without prejudice to any other remedy or right available to the Company, including the right of termination under clause 10, the Company shall be entitled to suspend any further deliveries or services to the Customer without liability to the Customer.
5. Delivery and Acceptance of the Products
5.1 Delivery of the Products shall be made:
5.1.1 where the Supplier undertakes delivery of the Product by land transport, as the Product passes the valve of the Supplier’s vehicle or other transport when unloaded at the station port or address specified by the Customer; or
5.1.2 where the customer undertakes to collect the Product by land transport, when the Product passes the flange of the Supplier’s storage tank while being loaded onto the Customer’s vehicle or other transport; or
5.1.3 Where the Contract calls for the Product to be conveyed by ship, the point of delivery of the Product and its acceptance will be as specified in the Contract itself.
5.2 The time of supply or delivery of the Products is not of the essence of the Contract and the Customer acknowledges that any dates for delivery of Products are estimates only. Accordingly the Supplier shall have no liability in the event of any delays or failure to deliver the Products.
5.3 The Customer shall be deemed to have accepted the Products three (3) working days after the date of delivery in all cases other than when the Products are damaged at the time of delivery and the Customer notifies the Supplier (in Writing) of such damage within three (3) working days of the date of delivery in which case the Supplier shall, at its sole option and as the Customers sole and exclusive remedy, replace or repair any such Products or part thereof which are proved, to the Supplier's satisfaction, to have been damaged at the time of delivery.
5.4 If the Customer refuses or fails to take delivery of Products tendered in accordance with these Conditions then, without prejudice to any other rights the Supplier may have against the Customer (for breach of contract or otherwise):
5.4.1 the Supplier shall be entitled (notwithstanding that property may not have passed) both to immediate payment in full for the Products so tendered and either to effect delivery by whatever means it considers most appropriate or to store those Products at the risk of the Customer;
5.4.2 the Customer shall, in addition to the purchase price, pay all costs of such storage and any additional costs incurred as a result of such refusal or failure;
5.4.3 the Supplier shall be entitled, after the expiration of 30 days from the date upon which it first tendered the Products for delivery, to dispose of the Products in such manner as the Supplier may determine and shall be under no duty to account to the Customer for any of the proceeds of such disposal.
5.5 The Supplier shall be treated as having fulfilled its obligations under a Contract notwithstanding that the quantity of Products delivered is up to 10% more or less than the quantity specified in the Contract and in such event the Customer shall pay for the quantity delivered.
5.6 The Supplier shall be entitled to deliver the Products to be delivered under a Contract in installments.
6. Product Safety
6.1 The Customer shall:
6.1.1 provide safe and sufficient facilities for the reception and storage of the Product including but not limited to ensuring compliance with the Environment Agency’s Pollution Prevention Guidance and the Oil Storage Regulations 2001;
6.1.2 comply with the requirements of all competent authorities in any relevant jurisdiction relating to the storage of the Product; and
6.1.3 observe the Customer's obligations under any, legislation, statute, statutory provision, regulation, governmental order or enactment (as re-enacted, amended, extended, replaced or applied) in force, including any EC directive or other legislation in any relevant jurisdiction.
6.2 The Customer shall, in respect of the Product, meet any duty or obligation imposed upon it under the Health & Safety at Work Act 1974 and any Regulations made thereunder including legislation in any other relevant jurisdiction and any equivalent EC directive or regulation.
6.3 The Customer's attention is drawn to the information relating to the Product contained in the Company's relevant Product Guide and Material Safety Data Sheet (MSDS). It is the responsibility of the Customer to handle the product in accordance with this information and the Supplier accepts no liability for any failure on the part of the Customer to follow the MSDS.
6.4 The Customer hereby indemnifies and agrees to keep the Supplier fully indemnified against any damages, claims or costs arising out of a breach of this Clause 6.
6.5 The Customer shall indemnify the Supplier against all claims by the customers of the Customer (and their sub-customers) arising out of any breach by the Customer of this Contract or arising out of any claim relating to the quality or fitness for a particular purpose with respect to the use of the Product.
7. Measurement
The Supplier's measurement of quantity as established by the Supplier's independent handling agent or surveyor at the time of loading of the cargo shall be accepted by the Customer.
8. Risk and Property
8.1 For deliveries or collection of the Product by land transport the Product shall be at the Customer’s risk from the time of delivery or, if earlier, when placed at the Customer’s disposal. Where the Contract calls for the Product is to be conveyed by ship, risk of damage to or loss of the Products shall pass to the Customer as specified in the Contract itself.
8.2 The title in the Products shall pass to the Customer upon full payment for the Products.
8.3 Until such time as title in the Products has passed to the Customer, the Supplier:
8.3.1 shall be entitled to repossess at any time any of the Products in which title remains vested in the Supplier;
8.3.2 for the purpose specified in 8.3.1 above, the Supplier or any of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the Products or any part thereof are installed, stored or kept, or are reasonably believed so to be;
8.3.3 shall be entitled to seek a court injunction or equivalent judicial order to prevent the Customer from selling, transferring or otherwise disposing of the Products.
8.4 Where the Customer’s facilities permit and until such time as title in the Products has passed to the Customer, the Customer shall, subject to the Supplier's rights hereunder, keep the Products separate and readily identifiable from other products and hold the Products as the Supplier's fiduciary agent and shall not be entitled to sell or otherwise dispose of the same or part with possession thereof.
9. Warranties and Limitation of Liability
9.1 The Supplier warrants that products supplied by the Supplier will at the time of delivery comply with the Supplier's specification for that Product in force at the time of delivery.
9.2 To the maximum extent permitted by law all other warranties and conditions, expressed or implied, including without limitation any conditions of quality or fitness for a particular purpose with respect to the use of the Products are excluded. In no event shall the Supplier be liable for any indirect, incidental, special or consequential loss or for any lost profits, savings or other economic loss arising from or relating to the use of the Product, even if the Supplier has been advised of the possibility of such loss.
9.3 In no event shall the Supplier's liability under Clause 9.2 exceed the price paid by the Customer for the Products in question, provided always that nothing in the Contract shall limit or exclude the Supplier's liability for death or personal injury resulting from its negligence.
9.4 If the Customer needs to make a claim under the warranties in this clause 9, the Customer must:
9.4.1 where claiming for total loss or non-delivery, notify the claim to the Supplier and its carriers in writing within 14 working days of the delivery date shown on the invoice;
9.4.2 where claiming for damage, part loss or short delivery, notify the claim to the Supplier and its carriers in writing within 3 working days of receipt of the Product.
9.5 The Supplier will not recognise or deal with any claim under the warranties in this clause 9 where the procedure in 9.4.1 or 9.4.2 (as appropriate) is not followed.
9.6 Nothing in this Clause 9 shall confer any right on the on the Customer to return the Product sold hereunder or to refuse or delay payment therefore, unless otherwise agreed in writing.
9.7 Where any damage or loss occurs to the Product, the Customer undertakes to act as a prudent insured person in mitigating the damage to or loss of the Product, and to inform the Supplier of any steps taken to do this as soon as is reasonably practicable.
10. Termination
10.1 The Supplier shall be entitled to terminate the Contract without liability to the Customer by giving notice to the Customer at any time if:
10.1.1 the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
10.1.3 the Customer ceases, or threatens to cease, to carry on business; or
10.1.4 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
10.2 If for any reason, supplies of the Product deliverable under this Agreement or of the feedstock from which such Product is directly or indirectly derived from any of the Supplier's then existing sources of supply are curtailed or cut off, the Supplier shall:
10.2.1 have the option during such period of curtailment or cessation to apportion such products fairly among its customers and whether under contract or not, such product as may be received in the ordinary course of business or manufactured at the Supplier's plant;
10.2.2 not be obliged to purchase or otherwise obtain alternative supplies of the Product deliverable under this Agreement or the feedstock from which such Product directly or indirectly is derived;
10.2.3 not be obliged to settle labour disputes, run down inventories below normal levels, adapt or vary its manufacturing plan except at the Supplier's sole discretion;
10.2.4 not be obliged take any steps other than in accordance with good business practice to make up inadequate supplies or to replace the supplies so curtailed or cut off; and
10.2.5 not be obliged to make up deliveries omitted or curtailed under this Agreement and any such deficiencies in deliveries shall be cancelled with no liability to either party.
11. General
11.1 None of the rights or obligations under this Contract may be assigned, transferred or sub-contracted without the prior consent of the other party, such consent not to be unreasonably withheld or delayed.
11.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.3 No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver of the Contract by the authorised representative of the Supplier shall only be effective if in Writing expressly waiving the provision in question.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.5 The Supplier shall be under no liability to the Customer in respect of anything which, apart from this provision, may constitute breach of the Contract arising by reason of force majeure, namely circumstances beyond the reasonable control of the Supplier which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, strike (of a party’s own or other employees), lockout or other industrial action, riot, civil commotion, including acts of local government and parliamentary authority; shortage of supplies, utilities, equipment, materials, breakdown or shortage of equipment and labour disputes of whatever nature and for whatever cause arising.
11.6 The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply. In particular but without limitation any warranties given in the Contract are for the benefit of the Customer, being the original purchaser of the Products, only. Where the Customer is a re-seller the Customer is responsible for dealing with any warranty or other claims from its customers and shall keep the Supplier fully indemnified in this regard.
11.7 All (and any) liabilities of the Supplier to the Customer under, or arising out of, a Contract (including, but not limited to, liability for breach of contract, negligence and misrepresentation), which may be excluded or limited at law and which have not been excluded or limited by any other provision of these Conditions shall be limited, in aggregate, to the value of the relevant Contract.
11.8 The Customer shall defend the Supplier from any and all claims brought against the Supplier by third parties, and shall indemnify and keep indemnified the Supplier against all damages, liabilities, costs and expenses, (including reasonable lawyers’ fees) incurred or suffered by the Supplier arising out of or in connection with Customer’s possession, use or distribution of the Products.
11.9 The Contract shall be governed and construed in accordance with the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.