Terms and conditions of sale Texchem U.K. Limited

1. Definitions

In the Terms and Conditions: “Seller” means Texchem U.K. Limited “Buyer” means the Company, corporate entity, firm, or person on the invoice to which these conditions are annexed. “Goods” means the goods specified on the invoice form to which these conditions are annexed. “Price” means the price set out overleaf.

2. Conditions applicable

2.1 These conditions shall apply to all contracts for the sale of goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply and any purchases order, confirmation of order or similar document.

2.2 All orders for goods shall be deemed to be an offer by the Buyer to purchase goods pursuant to these conditions.

2.3 Acceptance of delivery of the goods shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.

2.4 Any variation to these conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.

3. Price and payment

3.1 The price shall be the Price set out overleaf.

3.2 The date of payment of the Price is set out overleaf.  Time for payment shall be of the essence.

3.3 The cost of packaging is included in the Price unless otherwise stipulated overleaf.

3.4 If the buyer fails to make any payment on the due date, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

3.4.1 Cancel the Contract or suspend any further deliveries to the Buyer.

3.4.2 Seek immediate payment for all goods delivered under any other contract and/or suitable security for payment.

3.4.3 Charge the Buyer interest (both before and after any judgement on the amount unpaid, either at the rate of 5% above Nat West Bank base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) or at the rate set out in the Late Payment of Commercial Debts (interest) Act 1998 as applicable.

3.5 The Seller reserves the right, by giving notice to the Buyer at any time before delivery or collection, to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any factor beyond control of the Seller such as, without limitation, foreign exchange, and currency regulation.

4. Delivery

4.1 Delivery shall be deemed to be affected on delivery of the goods to the Buyer’s premises or in the case of collection by the Buyer, on the handing over of the goods to the Buyer or its Agent.

4.2 Delivery dates are given in good faith, but time of delivery shall not be of the essence in the contract.

5. Risk and property

5.1 In respect of goods delivered within the United Kingdom risk shall pass to the Buyer when the goods are delivered or collected by the Buyer or its Agent.  In respect of goods delivered outside the UK risk shall pass on the goods passing over the ships rail at the place of shipment, on delivery at a UK airport, in passing over the English border control at the Channel Tunnel.

5.2 In spite of delivery/collection having been made property in the Goods shall not pass from the seller until:

5.2.1 The Buyer shall have paid the Price in full and

5.2.2 No other sums whatever shall be due from the Buyer to the Seller.

5.3 Until property of the Goods passes to the Buyer in accordance with clause 5.2 the buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the seller.  The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.

5.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller.  Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.

5.5 The Seller shall be entitled to recover the Price notwithstanding that property in any of the Goods has not passed from the Seller.

5.6 Until such time as the property in the Goods passes from the Seller the Buyer shall upon request deliver up to the Seller such of the Goods as have not ceased to be in existence or been resold.  If the Buyer fails to do so the Seller may enter upon any premises owned, occupied, or controlled by the Buyer where the Goods are situated and repossess the Goods.  On the making of such request the rights of the Buyer under Clause 5.3 shall cease.

5.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller.  Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.

5.8 The Buyer shall insure and keep insured the Goods to the full Price against “all risks” to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.

6. Warranties/liability

6.1 Each of the sub-clauses in clause 6 is to be treated as separate and independent.

6.2 The Seller agrees that if any defect covered by this clause 6.2 is discovered during the period of 1 week commencing with the date of delivery or collection the Seller will at its own option either replace the Goods or refund the purchase Price or a fair proportion of it.

6.3 Clause 6.2 only covers defects caused by faulty manufacture, materials or workmanship.  It does not cover defects caused by unsuitable storage conditions or processing, abnormal use, misuse or neglect.  It does not cover faulty manufacture, materials or workmanship supplied or undertaken by a third party.

6.4 Claims in respect of defects covered by clause 6.2 should be made as soon as such faults are reasonably capable of discovery but in any event.

  (a) Where the Goods are for the Buyer’s own use or processing within 28 days of delivery of the Goods: or

  (b) Where Goods are bought for onward sale within 3 months of delivery to the ultimate purchaser failing which any such claim cannot be considered by the Seller.

6.5 The Buyer cannot claim the benefit of this clause unless:

  (a) He informs the Seller of the relevant defect in writing within 7 working days of discovering it: and

  (b) He returns the Goods to the Seller at his own expense and risk.

6.6 The Seller accepts no liability for any claims whatsoever once the Goods have been processed, taken into use, incorporated in other materials, or otherwise dealt with.

6.7 The seller shall be under no liability whatsoever to the Buyer for any indirect loss and / or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract.

6.8 All warranties and conditions whether implied by statute or otherwise are excluded from this Contract provided that nothing in this Contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Seller or affect the statutory rights of a Buyer dealing as consumer.

7. Exports

7.1 The Goods shall be delivered to the Buyer at the destination previously agreed in writing by both Seller and Buyer.  The Seller shall procure a Contract of Carriage and unless otherwise stipulated overleaf insure the Goods upon despatch until delivery on terms current in the trade for the benefit of the Buyer. The Seller shall promptly tender to the Buyer a clean ship bill of lading/airway bill, the insurance policy (if applicable) and an invoice in respect of the Goods.

7.2 The Buyer shall accept the documents tendered by the Seller if they correspond to this Contract and take delivery of the Goods at the agreed destination and the Buyer shall bear all other costs and charges arising out of delivery (such as shipment/airfreight charges).

8. Force majeure

8.1 The seller shall not be liable for any failure to deliver the Goods arising from circumstances outside the Seller’s control.

8.2 Non-exhaustive illustrations of such circumstances would be act of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lockouts, Government action or regulations (UK or otherwise), delay by suppliers, accidents and shortage of materials labour or manufacture facilities.

8.3 If the circumstances preventing delivery continue for a period of 3 months, then either party may give written notice to the other cancelling the contract.

9. Proper law and jurisdiction

9.1 The Contract shall be governed by and construed in accordance with the law of England.

10. Cancellation

10.1  Contracts may be cancelled or altered only by agreement in writing of both parties and upon payment to the Seller of such amount as may be necessary to indemnify the Seller against all loss resulting from the said cancellation.

11. Wavier

11.1 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.