Terms and Conditions
1. PREVAILING CONDITIONS
This contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the contract.
No contract will be created between the Seller and the Buyer until the Seller has dispatched written confirmation of its acceptance of the Buyer’s order. Quotations issued by the Seller are not offers capable of acceptance so as to make a binding contract. Quotations are invitations to treat only.
The price payable for the goods shall be the Seller’s price list current on the date upon which the goods are dispatched from the Seller’s premises, subject to any quantity discounts agreed or price previously agreed between the parties and set out on the invoice. The price of the goods is exclusive of VAT.
Notwithstanding acceptance of the Buyer’s order, the Seller reserves the right to discontinue the manufacture, supply and delivery of any goods or line of goods at any time.
5. TERMS OF PAYMENT
a. Payment for the goods will become due within 30 days of the invoice date.
b. Where payment is delayed beyond the date specified for payment pursuant to Clause 5a, the Buyer shall pay interest on any sums remaining unpaid at the rate of 4% above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
c. Time of payment shall be of the essence and failure to make any payment on the due date shall entitle the Seller to treat the contract as repudiated and act accordingly (including cancelling delivery of the goods or further deliveries under the contract) and require payment in full of sums due under this contract or remaining outstanding under any other contract (whether for the sale of goods or otherwise).
The prices quoted include the cost of the Seller’s normal packing. If the Buyer requires any special type of packaging to be used it should request a special quotation from the Seller.
7. PASSING OF RISK
a. Risk in the goods will pass to the Buyer on completion of delivery. Delivery of the goods shall be completed at the Seller’s premises, or such other location as is specified on the applicable order invoice.
b. The Buyer shall notify the Seller of any damage to, or partial loss of, the goods as a result of transit, within 3 days of their receipt at the agreed location. The Seller at its sole discretion shall supply the Buyer with a replacement for the relevant goods or a credit note equivalent in value to the purchase price of such goods. The Seller reserves the right to collect and inspect such goods.
a. Title to the goods shall not pass to the Buyer until:
i. payment in full for the goods that the Seller has supplied to the Buyer, has been received.
b. Until title to the goods has passed to the Buyer, the Buyer shall:
i. keep and store in such a manner as to enable identification of the goods as those of the Seller;
ii. not remove, deface or obscure any identifying mark or packaging on or relating to the goods;
iii. maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
iv. notify the Seller immediately if it becomes subject to any of the events listed in Clause 14a
c. If before title passes, the Buyer becomes subject to any of the events listed in Clause 14a, then, without limiting any other right or remedy the Seller may have:
(i) the right to sell or use goods in the ordinary course of business ceases immediately; and
(ii) the Seller may, at any time, enter any premises of the Buyer or any third party (and the Buyer grants to the Seller, or shall procure the grant to the Seller of, an irrevocable licence to do so) in order to recover goods stored at such premises which have not been resold by the Buyer or irrevocably incorporated into another product, or at any time require the Buyer to deliver up all such goods in its possession.
9. LATE DELIVERY
a. The Seller will endeavour to comply with any delivery time quoted to the Buyer.
b. Any delivery times quoted by the Seller are, unless agreed in writing to the contrary, approximate and time for delivery is not of the essence. Subject to Clause 10a and 10b, the Seller shall not be liable to the Buyer in respect of any loss howsoever arising, suffered by the Buyer as a result of the Seller’s failure to dispatch the goods within any delivery time quoted.
10. WARRANTY AND LIMITATION OF LIABILITY
a. Nothing in this agreement shall limit or exclude the liability of the Seller for: (a) death or personal injury resulting from negligence; or (b) fraud or fraudulent misrepresentation; or (c) anything else which cannot be excluded by law.
b. Subject to Clause 10a:
i. the Seller does not sell the goods (or provide any associated technical advice or services) subject to any warranty or condition either express or implied by common law, statute or otherwise, and all such warranties and conditions are hereby expressly excluded to the fullest extent permitted by law, save that the Seller warrants that the goods shall conform with their description on the Seller’s order acknowledgement of the applicable order, provided always that goods for “made to order” materials are accepted by the Buyer on the understanding that the Seller may deliver goods up to and including 10% more or less in the quantity of goods ordered due to production anomalies (in which case the Seller shall not be liable for any such fluctuations and the value of the applicable invoice shall be adjusted accordingly and the Buyer shall have no right to reject such goods);
ii. the Seller does not sell the goods subject to any warranty or condition concerning the fitness of the goods for a particular purpose;
iii. the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this contract; and
iv. the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with any order for goods, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the purchase price of the goods that are the subject of the applicable order.
v. the Seller reserves the right to make any changes in the specification of the goods which are required to confirm with any applicable statutory requirements or, where the goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
vi. If the goods are ordered by brand name the Seller reserves the right to substitute similar goods which perform to the same standard.
c. The Buyer shall give written notice to the Seller of any shortfall in quality of the goods within 21 days of the date of delivery and give a reasonable opportunity for the Seller to examine such goods in accordance with its usual quality control procedures.
11. DIVISIBILITY CLAUSE
a. The company reserves the right to make deliveries/and or services by instalments and render a separate invoice in respect of each such instalment.
b. If the company exercises its right to make deliveries/and or services in accordance with sub-paragraph (a) above, then any delay in the provision of such deliveries/and or services, or failure to deliver any further instalment or instalments, shall not entitle the Buyer to reject the contract or the delivery/services of any other instalment or to withhold payment in respect of any instalment previously delivered/serviced.
12. HEALTH / LIABILITY
The Buyer shall be responsible for ensuring that the goods and their importation, exportation, use, sale, disposal, storage and handling of the goods, comply with the technical information supplied by the Seller, or available within the industry and laws governing the same, and do not pose a risk to health or third parties. The Buyer shall indemnify the Seller from and against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses and legal and other professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with the importation, exportation, use, sale, disposal, storage or handling of the goods.
13. TECHNICAL ADVICE
a. Notwithstanding that the Seller may give information or advice concerning the chemical behavioural characteristics of the goods or use of the goods in certain circumstances or the suitability for use of any substance in connection with the goods, the Buyer must rely upon its own skill and judgement in relation to such matters, having regard to the information sheets provided by the manufacturer, industry knowledge and its own testing. Subject to Clauses 10a and 10b, and to the fullest extent permitted by law, the Seller hereby expressly excludes all liability, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for damage or loss sustained by the Buyer as result of a reliance upon such information or advice.
b. The Buyer acknowledges that Clause 13a is reasonable because the Buyer is better placed to understand the uses to which the goods will be put and the suitability for use of any design or substance used in connection with the goods.
14. EVENTS OF DEFAULT AND TERMINATION
a. The Seller may terminate this contract with immediate effect by giving written notice to the Buyer if: i. the Buyer fails to make any payment which has become due under the terms of this contract or any other contract between the Buyer and the Seller or commits any other breach of its obligations hereunder; ii. the Buyer is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning section 123 of the Insolvency Act 1986; iii. the Buyer compounds or makes any voluntary arrangement with its creditors or an application is made to court or an order is made for the appointment of an administrator or (being an individual or firm) becomes the subject of a bankruptcy petition or (being a company) goes into liquidation (otherwise for the purposes of amalgamation or reconstruction); iv. an administrator or a receiver is appointed over any of the property or assets of the Buyer; v. the Buyer ceases or threatens to cease to carry on business; or vi. the Seller reasonably apprehends that any of the events mentioned above are about to occur in relation to the Buyer and notifies the Buyer accordingly.
b. If any of Clauses 14.a.i to 14.a.vi (inclusive) applies then (without prejudice to any other right or remedy available to the Seller) the Seller shall be entitled to cancel this contract and any other
contract or suspend any further deliveries under any such contract without any liability to the Buyer, and if any goods have been supplied under any such contract but not paid for, all monies then due or to become due by the Buyer to the Seller under this contract or any other contract shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and the Seller shall be entitled to retain any deposits paid by the Buyer on account of such liability. Clauses which expressly or by implication survive termination of this contract shall continue in full force and effect.
15. DATA PROTECTION
a. The Seller may undertake searches with credit reference agencies in relation to the Buyer, including principal directors. The Seller may make information relating to the Buyer’s trade credit performance available to credit reference agencies and other organisations to assess applications for credit, fraud prevention and debtor tracing.
b. The Seller may use information (including personal data, as defined in the Data Protection Act 1998) provided to it by the Buyer to provide information to the Buyer about other goods offered by the Seller that are similar to those already purchased and disclose such information to third party organisations engaged by the Seller to conduct promotional activities on the Seller’s behalf.
c. All personal data (as defined in the Data Protection Act 1998) provided by the Buyer to the Seller will be processed and held by the Seller in accordance with the Data Protection Act 1998.
16: DATA PRIVACY – GDPR
POLYFOAM XPS LTD will comply with the GDPR. The protection of an individual’s privacy is a fundamental right. Within POLYFOAM XPS LTD the processing of personal data is allowed, but only for purposes compatible with those for which the personal data have been collected. The following personal data are collected:
Processing of Personal Data of potential, current and former customers
Purposes: customer administration, bookkeeping system fulfillments, quality management fulfillments based on our contractual relationship and/or because you use our products and/or services.
Information: customers will be informed through the privacy statement.
As our potential, current or former customer you can exercise the rights with regards to your personal data:
– Right to withdraw consent at any time
– Right of access to the personal data
– Right to rectification of incomplete, inadequate or excessive personal data
– Right to erasure of inaccurate, erroneous or incomplete personal data, of personal data that is no longer necessary in relation to the purpose, when the consent has been withdrawn or any personal data which does not comply with the provisions of the current legislation
– Right to restriction of processing in case of inaccuracy, processing is unlawful, there is no longer need of the processed personal data, of a pending procedure of verification of legitimate grounds.
– Right to data portability: to receive your Personal Data or have it transmitted in a structured, commonly used and machine-readable format when the processing is based on the consent of the Individual or based on a contract and is carried out by automated means
– Right to object
The application to exercise any of the rights mentioned above should be done to firstname.lastname@example.org. Each application must contain all information we need to define the identity of the Individual requesting any of the rights such as:
name and surname of the Individual, and a photocopy of both side of the identity card nature of the request data of the application and signature of Individual.
POLYFOAM XPS LTD will reply as soon as possible after the date of receipt of the application.
POLYFOAM XPS LTD has taken and will take all the necessary measure for the security of the processing of personal data, the necessary technical and organizational measure are in place. All personal data are stored in a secured place behind the necessary domain security and the necessary policies are in place
17. FORCE MAJEURE
Without prejudice to the Buyer’s obligation to pay sums due and payable to the Seller pursuant to this contract, neither party shall be in breach of this contract nor liable for delay in performing, or failure to perform, any of its obligations under this contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30 business days the party not affected may terminate this contract by giving 30 business days’ written notice to the affected party.
18. ASSIGNMENT AND OTHER DEALINGS
a. The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract.
The Seller shall be entitled to transfer any claim under this contract to Factoring Service Center NV without prior consent of the Buyer. If any provisions in the General Terms and Conditions of the Buyer conflict with the transferability of a claim such provisions are hereby explicitly rejected and excluded.
b. The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the contract without the prior written consent of the Seller.
a. If any provision or part-provision of the contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 18 shall not affect the validity and enforceability of the rest of the contract.
20. THIRD PARTY RIGHTS
A person who is not a party to the contract shall not have any rights to enforce its terms.
The Seller shall (a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; and
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
No failure or delay by a party to exercise any right or remedy provided under the contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as set out in this contract, no variation of the contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Seller.
24. GOVERNING LAW AND JURISDICTION
This contract shall be governed by English law and any dispute or claim arising out of or in connection with it shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have the exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this contract.