Terms and Conditions of Sale (excluding on-line sale of goods)
1.1. In these Conditions:
“Buyer” means the person who purchases the Goods from the Seller
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller
“Contract” means the contract for the purchase and sale of the Goods
“Goods” means the goods (including any installment of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions
"Incoterms" means The International Rules for the Interpretation of Trade Terms, 2000 and any term or expression which is defined in or given a particular meaning by the provisions of Incoterms has the same meaning in these Conditions unless there is any conflict, in which case these Conditions will prevail.
“Seller” means Spandex Limited (registered in England and Wales under number 1266024)
1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that 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.
1.4. These Terms and Conditions are effective for all orders placed on or after 13th September 2007 and supersede all previous versions of the Spandex Terms and Conditions.
2. Basis of the Sale
2.1. Subject to a variation under Condition 2.3, the Seller shall sell and the Buyer shall purchase the Goods subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2. No terms or conditions endorsed upon, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document will form part of the Contract as a result of such document being referred to in the Contract.
2.3. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.4. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.5. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.6. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and Specifications
3.1. Each order for the Goods placed by the Buyer with the Seller will be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
3.2. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative or (if earlier) the Seller delivers the Goods to the Buyer.
3.3. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.4. Any quotation is given on the basis that no contract will come into existence until the Seller accepts the Buyer's order in accordance with Condition 3.2. Any quotation is valid for the period stated or, where no period is stated, for 30 days from its date, provided that the Seller has not withdrawn it previously.
3.5. The quantity, quality and description of any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer).
3.6. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, cost and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer's specification.
3.7. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’ specification, which do not materially affect their quality or performance.
3.8. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages charges and expenses incurred by the Seller as a result of cancellation.
3.9. Where the Seller gives a quotation based upon information supplied by the Buyer, the Buyer is responsible for its accuracy and any increased costs of supply resulting from any inaccuracy are the Buyer’s responsibility.
4. Price of the Goods
4.1. The price of the Goods shall be the price contained in the Seller’s non-binding quote or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. The Buyer is responsible for verifying that the prices in the Seller’s published price list are current. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list applies.
4.2. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, material or other costs of manufacture), any change in delivery or installation dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3. Except as otherwise expressly agreed, all prices are exclusive of value added tax and all costs in relation to loading, carriage, unloading, installation and insurance all of which amounts the Buyer will pay in addition to the price when it is due to pay for the Goods.
4.4. The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
5. Terms of Payment
5.1. Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2. Subject to clause 5.4 below, the Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) by the end of the month following the month of invoice, notwithstanding that delivery may not have taken place and that property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3. Where the Seller agrees that payment for the Goods may be made by a third party on behalf of the Buyer, the Seller will raise an invoice addressed to the third party for the Goods, and the Buyer must promptly execute and comply with such of that third party's terms and conditions as are necessary to ensure payment is made to the Seller in accordance with the time scales set out in Clause 5.2. Should the Buyer fail to comply with the third party's terms and conditions such that payment is not made to the Seller in accordance with Clause 5.2, then the Buyer becomes liable for payment of the invoice, notwithstanding its agreement for payment by a third party, and the entire price shall immediately become payable by the Buyer
5.4. The Seller reserves the right to stipulate alternative payment terms to those set out in this Clause 5. Any such terms will be notified to the Buyer at the time an order is placed and will be confirmed in writing by the Seller’s authorised representative.
5.5. If the Buyer fails to make payment on the due date then, without prejudice to any other right or remedy available to Seller, the Seller shall be entitled to:
No payment will be deemed to have been made until the Seller has received cleared funds.
6. Delivery, installation and training
6.1. Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. The export terms in Condition 10 apply to Goods to be delivered outside of the UK.
6.2. The Buyer will take delivery of the Goods within 14 days of the Seller giving it notice that the Goods are ready for delivery.
6.3. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.4. Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to five per cent more or five per cent less than the quantity ordered (without any adjustment in the price) and the quantity so delivered shall be deemed to be the quantity ordered.
6.5. Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.6. Subject to Condition 6.7, if the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
6.7. Any claim by the Buyer for non or incorrect delivery (whether or not delivery is refused by the Buyer) must be notified to the Seller within 10 days from the scheduled delivery date. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer is not entitled to reject the Goods and the Buyer must pay the price (plus VAT and other applicable charges) as if the Goods had been delivered in accordance with the Contract.
6.8. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.8.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.8.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.9. Where agreed by the Seller, the Seller will install the Goods at the agreed location ("Location") on the agreed date.
6.10. The Buyer will at its own expense prepare the Location for the installation of the Goods, provide the proper environmental and operational conditions necessary for the efficient working and maintenance of the Goods before they are delivered and comply fully with any reasonable instructions or guidelines issued by the Seller in connection with the installation of the Goods.
6.11. The Buyer will afford to the authorised personnel of the Seller during normal working hours reasonable access to the Location and will provide adequate free working space, access to its employees and any other facilities as may be reasonably necessary for the installation of the Goods.
6.12. If in the reasonable opinion of the Seller it is necessary to remove or otherwise disconnect any of the Buyer’s existing equipment at the Location in order to carry out the installation of the Goods, then the Buyer will permit, and obtain all necessary consents for, that removal and/or disconnection and will give the Seller all necessary assistance to enable that work to be carried out.
6.13. Any dates quoted for delivery or installation of the Goods are approximate only and the Seller shall not be liable for any delay in delivery or installation of the Goods howsoever caused. Time for delivery and installation shall not be of the essence.
6.14. The Seller will provide such training in the use of the Goods for the Buyer’s staff as is agreed between the Buyer and the Seller’s authorized representative. Any additional training required by the Buyer will be provided by the Seller in accordance with its standard scale of charges from time to time in force and at such times and to such extent as may be agreed between the parties
7. Risk and Property
7.1. Unless otherwise agreed by the Seller in writing, where the Goods are supplied for delivery within the United Kingdom the Goods will be delivered CIP the delivery address agreed by the Seller in writing.
7.2. Risk of damage to or loss of the Goods shall pass to the Buyer:
7.3. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods (plus VAT and other applicable charges) and all other sums which are or which become due to the Seller from the Buyer on any account.
7.4. Until such time as the property in the Goods has passed to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property and the Buyer will not pledge or charge the Goods by way of security or otherwise. Breach of any of the provisions of this Condition will result in all money owing by the Buyer to the Seller (without affecting any of the Seller’s other rights or remedies) becoming immediately due and payable. Once property in the Goods has passed to the Buyer, it is entitled to resell or use the Goods in the ordinary course of its business.
7.5. Until such time as the property in the Goods passes to the Buyer, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. The Purchaser grants the Company an irrevocable licence to enter, with or without vehicles, any of its premises for such purpose.
8. Warranties and Liability
8.1. Subject to the Conditions set out below the Seller warrants that
All other warranties, conditions or other terms implied by statute or common law (including fitness for purpose) are excluded to the fullest extent permitted by law. This warranty is not transferable in any way.
8.2. The warranty given in Condition 8.1 does not apply, and the Seller shall not have any liability, in respect of any claims:
8.3. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure, failing which the Seller shall have no liability to the Buyer in respect of such claim.
8.4. The Buyer shall give the Seller a reasonable opportunity to remedy any matter for which the Seller is liable under the Contract before the Buyer incurs any costs and / or expenses in remedying the matter itself. If the Buyer does not do so then the Seller shall have no liability to the Buyer. Where a valid claim in respect of any Goods which is based on their failure to correspond with their specification or a defect in the material or workmanship of the Goods is notified to the Seller in accordance with these Conditions, the Seller may repair or replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.
8.5. Except as provided in Condition 8.8, the Seller is not liable to the Buyer because of any representation (unless fraudulent), or any warranty (express or implied), condition or other term, or any duty at common law, or under the express terms of the Contract, for:
8.6. Except as provided in Condition 8.8, any other liability of the Seller to the Buyer in contract, tort, negligence, breach of statutory duty or otherwise arising out of or in connection with the Contract, is limited to £1 million.
8.7. Without prejudice to Conditions 2.4 and 2.5, any advice, instruction and/or recommendation relating to the Goods and/or their use whether written or oral given by the Seller’s employees (“Advice”) is given in good faith, but the Seller only warrants that written Advice is given with reasonable skill and care. No further duty or responsibility is accepted by the Seller.
8.8. Despite the conditions set out above, no Condition will exclude or restrict the liability of the Seller for breach of the statutory warranty as to title and quiet possession. Nothing in these Conditions will operate or be construed to operate so as to exclude or restrict the liability of the Seller for death or personal injury caused by the negligence of the Seller.
8.9. The Buyer must rely on its own testing of Goods and in no circumstances will the Seller be deemed to have represented that Goods are fit for any particular purpose, other than any purpose expressly set out in the Seller's literature (including instruction sheets, handbooks and data sheets) or otherwise in writing.
8.10. In respect of sales of Goods to or Advice given to consumers, nothing contained in these Conditions will affect those customers’ statutory rights.
8.11. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control.
8.12. The limitations in these Conditions are necessary in order to allow the Seller to provide the Goods at its current prices. If the Buyer requires greater protection then the Seller will agree to modify the limitations and extend its obligations in return for the payment of higher prices for the Goods.
9. Insolvency of Buyer
9.1. Condition 9.2 applies if:
9.2. If this Condition applies than, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further performance under the Contract without thereby incurring any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. Export Terms
10.1. Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 10 apply (subject to any special terms agreed in writing between the parties).
10.2. The Goods will be delivered EXW the Seller's premises in the UK and the Seller is under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
10.3. Payment of all amounts due to the Seller must either be made in advance of despatch or by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank acceptable to the Seller. All payments must be made in pounds sterling.
10.4. The Buyer is responsible for ensuring that the Goods comply with the laws and regulations of the country to which it requires the Goods to be supplied and for obtaining the necessary export/import licences. The Buyer will not hold the Seller liable for any failure to comply with those laws and regulations or to obtain the necessary licences.
11.1. All information, drawings, specifications, documents, design material and all other data which the Seller gives to the Buyer is proprietary and confidential. The Buyer agrees that it will not disclose this information to third parties, whether directly or indirectly, without the Seller’s prior written consent.
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. E-mail is not effective notice.
11.3. 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.
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 Each Contract will only confer rights and benefits on the Seller and the Buyer and no third party will acquire any rights or benefits under the Contract or these Conditions.
11.6. The Contract may not be assigned by the Buyer, but the Seller may assign or sub-contract all or any of its rights or obligations.
11.7. These Conditions and the documents referred to in them, set out the entire agreement between the parties and supersede any previous agreements between the parties relating to the subject matter of the Contract. The Buyer acknowledges that in entering into the Contract it has not relied on any representation, warranty, agreement or statement not set out in these Conditions and that (in the absence of fraud) it will not have any right or remedy arising out of any such representation, warranty, agreement or statement and that its only remedy for breach of these Conditions is for breach of contract under the terms of these Conditions.
11.8. Any dispute arising under or in connection with these Conditions or the sale of Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Chartered Institute of Arbitrators, in accordance with the rules of that Institute.
11.9. The Contract shall be governed by the laws of England