1. These terms and conditions, together with the particulars supplied to the Buyer at the time of delivery of the product, supersede any terms and conditions proposed by the Buyer. They are the only terms and conditions upon which Packed Chlorine Limited, (referred to hereafter as the seller) is willing to contract with the Buyer unless they have been varied in writing by the Seller prior to sale. No servant or agent of the Seller has authority to contract on any terms other than these save in the case of a written variation and save where the said servant or agent demands payment of the goods prior to delivery in accordance with Clause 2 (i) (a) below.
2(i). (a) The seller reserves the right to demand payment in full for the goods prior to delivery or at any time after delivery but if he makes no such demand payment for each delivery shall be made not later than the 21st of the month following the month of delivery.
(b) In the event that the goods are supplied by the Seller to the Buyer but not paid for on due date, or if
payment before despatch is a term of the sale and payment is not made by due date the Seller is entitled
should he choose so to do treat the agreement as at an end but if he does so elect it will be without
prejudice to his rights against the Buyer in respect of any antecedent liability hereunder, already incurred by the Buyer to the Seller
(c) In the event of payment being made later than at the time stipulated under the agreement or in the event of the Buyer incurring any liability to the Seller under this agreement in the event of such liability not being discharged forthwith upon its occurrence the Seller shall be entitled to simple interest on such sum’s as are due and owing to him under the agreement from the Buyer at the rate of 3% above the base rate for the time being of the Royal Bank of Scotland plc.
2(ii). Any taxes or duties imposed on products supplied or on products from which they are derived shall be paid by the Buyer or, alternatively, the Buyer shall reimburse the Seller for any such taxes or duties paid by the seller within 28 days of receipt by the Buyer of notice from the Seller of payment by the Seller of the said taxes or duties.
3(i). The Buyer shall provide suitable, safe, adequate, facilities for the reception of products into storage. The Buyer agrees to indemnify the Seller against any liability, claim , damages, costs or expenses arising out of or caused by or incidental to any breach of this condition by the Buyer.
3(ii). The Buyer warrants that the Buyer has, does and shall comply with all regulations of and recommendations from all competent authorities relating to the storage and use of products a undertakes to fulfil any obligation relating thereto under any Act of Parliament, Order, Regulation o otherwise for the time being in force.
4(ii). (a) The Seller warrants that the products accord with their description and specification at the time they leave the Sellers factory.
(b) Where the product is collected by the Buyer or the Buyers agent in bulk from the Sellers factory or nominated installation, the Buyer undertakes carefully to examine and test the product to ensure that it corresponds with its description and specification before he uses it, resells it or otherwise disposes of it and after the product leaves the Sellers factory the Sellers above mentioned warranty shall not apply nor shall any statutory warranty to the like effect apply in respect of any product collected by the Buyer but not tested and examined after transportation but before use or resale or other disposal by the Buyer.
(c) Where the product is delivered to the Buyer by a carrier appointed by the Seller in bulk from the Sellers factory the warranty given in sub-clause (a) hereof shall ex tend to the time of delivery save and except that unless the Buyer (who hereby undertakes so to do) carefully examines and tests the product to ensure that it corresponds with its description and specification before he uses it or resells it or otherwise disposes of it the Sellers liability in respect on any breach thereof shall be limited to the value of the product supplied together with the benefit of any guarantees or terms, conditions or warranties given by the Sellers carrier to the Seller in respect whereof the Seller undertakes to use its best endeavours to make the benefit of such guarantees or warranties to the Buyer.
4(iii). Subject as herein lawfully provided the Seller undertakes to replace or at its option credit the value of all products supplied which are defective or do not accord with their description or specification or are otherwise not in conformity with the contact provided always:-
(a) That the Seller has been inform ed in writing of such defective products within:-
(i) In the case of goods delivered in bulk, seven days of the examination and test of the product to be carried out by the Buyer under clauses 4.(ii) (b) and (c) hereof
(ii) In the case of goods supplied in drum s or containers within twenty-eight days of the date of the delivery of the container Buyer.
and
(b) That the defect or deviation from description or specification has not been caused by and is not in anyway attributable to negligent, unsuitable or inadequate handling, carriage, storage of the product or its misuse or misapplication
4(iv). The Sellers liability whether in contract tort or otherwise in respect of any product supplied by it shall be limited solely to the foregoing, and in no circumstances does the Seller accept any liability for:-
(i) any consequential loss or dam age suffered by the Buyer howsoever arising and
(ii) purely economic loss other than liability in respect of the matters referred to in Section 2 of the unfair contract terms act 1977
4(v). In particular but without prejudice to the generality of the foregoing, the seller accepts no liability in respect of any product once it has been incorporated in any com pound, mixture or blend:-
(a) Unless before the com pounding, mixing or blending the Buyer (who hereby undertakes to do so) shall have examined and tested the product to ensure that it corresponds with it’s description and specification.
(b) Or where the nature of the compounding, mixing or blending causes the product to deviate from its description and specification.
4(vi). The undertakings given by the seller in paragraph 4 hereof are in substitution for any term , conditions or warranties implied at com m on law or by statute or by custom or otherwise and insofar as is permitted by law such terms, conditions or warranties are hereby excluded from any sale to which the terms and conditions herein apply.
4(vii). The buyer by dealing with the seller acknowledges that he is buying in a competitive market and that the relative bargaining strengths of the seller and the Buyer are not relevant factors in the purchase by the Buyer of products of the seller. Further it is agreed by the Buyer that he buys having regard to interalia the following factors:-
(i) Infinite variety of uses to which the product can be put
(ii) The Sensitivity of the product to contamination and degradation in carriage, handling and storage
(iii) The lack of control available to the Seller ov er the product after it has left the seller’s factory.
(iv) The difficulty in isolating and examining the product after its use or application in a com pound, mixture or process
(v) The fact that it is reasonably practicable for the buyer to examine and test the product after it has been subject to carriage, handling and storage and/or before it is com pounded, mixed or blended with other products and the results of such tests recorded and notified to the Seller if any deviation from description is alleged to be present and he is aware that the Seller relies inter alia upon these factors as showing that the term s herein contained as to exclusion of liability are reasonable and that with full knowledge thereof and having taken such adv ice as he thinks fit and thereby or otherwise having familiarised him self with the effect thereof upon the relevant rights duties and liabilities which m ay otherwise arise by virtue of the Sale of Goods Act 1979, the Buyer agrees to contract upon the term s herein including the term s as to exclusion of liability.
4(viii) In cases where the Buyer purchases the product from the Seller to repack or re-label the product and market it under a different brand name, the Buyer further agrees to examine and test the product to ensure that it corresponds with its description and specification before he resells it and within seven days of the said examination or test and in any event before reselling or re-labelling notify the Seller in writing of any such alleged deviation and upon the failure of the Buyer so to examine and test the product the Sellers liability for any deviation from the description or the specification of product shall be limited only to the value of the product and the cost of their return and the transportation of alternative product to the Buyer.
5(i) The goods, the subject m atter of a sale to which these conditions apply, shall be at the risk of the Seller until they are delivered to the Buyer whereafter the risk of loss or damage to the goods shall be the Buyers exclusively.
5(ii) Delivery shall be deem ed to have occurred (a) in the case of products to be collected from the Seller, from the commencement of the loading of drum s or other containers onto the collecting vehicle or from the time the product commences to pass out of the delivery line of the Sellers storage tank, as the case may be, or (b) in the case of products to be delivered by the Seller’s agent to an address in Great Britain, when the Buyer commences to remove the drum s or other containers from the transporting vehicles at such an address, or from the commencement of the passage of the product from the flexible hose or delivery line of the tanker or other vehicle out of which delivery is effected, as the case may be.
6(i) Whilst in accordance with Clause 5(i) hereof risk of loss or dam age to all goods supplied by the Seller to the Buyer shall pass from the Seller to the Buyer on delivery, title and property in any and all goods supplied by the Seller to the Buyer from time to time whether under this agreement or any other agreement (including, full legal and beneficial ownership) shall rem ain with the Seller and shall not pass to the Buyer unless and until the Seller has received from the Buyer in cash or unconditional cleared funds payment in full for all goods supplied by the Seller to the Buyer both under this agreement and any other agreement from time to time in place between the Seller and the Buyer. Payment of the full price for all such goods shall include, for the avoidance of doubt, the amount of any interest or other sums which may become payable by the Seller to the Buyer in connection with those goods under the terms of this agreement or any other applicable agreement in place between the Seller and the Buyer from time to time.
6(ii) Until title and property in any goods supplied by the Seller to the Buyer from time to time has passed to the Buyer in accordance with Clause 6(i) hereof, the Buyer must hold all such goods which are delivered to it on a fiduciary basis as bailee for the Seller and shall store those goods (at no cost to the Seller) separately from all other goods of the Buyer or of any other third party and in such a way that they remain readily identifiable as the property of the Seller. However, prior to the property in any goods passing to the Buyer in accordance with Clause 6(i) hereof and, subject to the Seller not having become entitled to repossess those goods in accordance with Clause 6(iii) hereof, the Seller shall be entitled to use the goods supplied in the norm al course of its business or to resell those goods (or any products produced by the Buyer incorporating those goods) to third parties in the norm al course of its business at full market value and on the condition that any products so produced by the use of the goods supplied and any amounts received from third parties for the sale of any such products or the goods themselves are held by the Buyer as trustee for the Seller and, without prejudice to the liability of the Buyer to pay the Seller for all goods supplied by it, the Buyer shall assign to the Seller at the request of the Seller all rights and claims that he has against any such third parties so supplied.
6(iii) If at any time the Buyer is in breach of any term of this agreement (including, but not limited to, any breach of Clause 2(ii) hereof) or if he shall com m it an act of bankruptcy or suffer any execution to be levied against his property or if being a Company suffers a receiver to be appointed, enters into insolvency or if placed in liquidation then the Seller m ay forthwith recover from the Buyer any goods which the Seller may have delivered to the Buyer but which title and property in which has not yet passed from the Seller to the Buyer under Clause 6(i) hereof. The Buyer hereby grants to the Seller and its agents and representatives an irrevocable licence to enter upon the premises of the Buyer for the purpose of repossessing any goods under this Clause(iii) or, in the case of any such goods stored on the premises of any third party, shall procure such a licence for the Seller from the third party in question.
6(iv) In any event, the Seller shall be entitled to recover payment from the Buyer for all goods supplied to it notwithstanding that ownership of the goods in question m ay not yet have passed to the Buyer under Clause 6(i) hereof.
7 Where containers or pallets belonging to the seller are used in connection with the delivery of the goods the value of all chargeable item s will be shown as a separate item on the sellers sales invoice for the goods and shall be paid for in full by the Buyer when payment for the goods is due. All such empty containers or pallets returned, at the buyers expense, to the Seller in good and complete condition within three months of receipt by the Buyer m ay be repurchased at the Sellers discretion at such a rate as may be determined by the Seller from time to time.
8 The Buyer undertakes to draw to the attention of his serv ants or agents or any other persons handling or otherwise using the products on his behalf or having access to the products whilst in the Buyer’s possession to any information or warnings concerning the methods whereby or the conditions whereunder the products should be used or handled contained in the Seller’s product Data Sheet or other literature relating to the products or in any other literature therein referred to, and to ensure compliance by such persons with any warnings, suggestions or instructions relevant to the product made or contained in the Data Sheet or in any other literature referred to above. The Buyer undertakes to indemnify the Seller in respect of any loss or liability whatsoever and wheresoever suffered or incurred by the Seller by reason of any breach by the Buyer of the foregoing, or by reason of any failure by the Buyer to com ply with warnings, suggestions or instructions referred to in the foregoing, or by reason of any failure by the Buyer him self to comply with the warnings, suggestions or instructions referred to in the foregoing.
9 All claim s for damage to, partial loss of the product in transit must be submitted in writing to both the carrier and the Seller within three days of the delivery. In the case of non delivery of a whole consignment, claims must be submitted in writing to both the carrier and the Seller within seven days of due delivery date. In the absence of such claim s the goods shall be deem ed to have been delivered in accordance with the contract of sale to which these conditions attach unless the failure to submit the said claims within the times above mentioned arose out of any act or default on the part of the Seller or unless it was not reasonably practicable for a prudent Buyer to ascertain that the product was lost within the time period set out above.
10 The Buyer shall have the right of representation at the measuring of any quality of product but in the
event of any dispute the Seller’s measurements shall be deem ed to be accurate provided always that the Seller’s measurements are made in good faith. Complaints of short delivery shall be deem ed not to be made in accordance with these conditions and will be thereby be of no effect unless they are made to the Seller’s representative and noted at the time of delivery on the delivery receipt and also confirmed in writing received by the seller within seven days of delivery.
11 Any relaxation or concession that may be given by the Seller to the Buyer in respect of the Sellers rights under these term s and conditions shall not in any way affect or prejudice those rights.
12 The Seller shall not be liable for any loss or dam age occasioned by the Buyer in the Event of the Seller being unable to discharge its obligations to the Buyer by any circumstances reasonably beyond its immediate control.
13 The construction of these terms and conditions and of any sale of which they form part shall be in accordance with the Law of England and Wales and only Courts within the jurisdiction of England and Wales shall have jurisdiction to hear and determine any dispute relating thereto.