In these Conditions of Sale (“Conditions”) ULTRIMAX COATINGS LIMITED, registered company number 08472363 whose registered office is at Finishline, Clayfields Industrial Estate, Doncaster, DN4 8QG is referred to as the ‘Company’ and the person / ﬁrm or Company purchasing from ULTRIMAX is referred to as the ‘Customer’.
2. BASIS & APPLICATION:
2.1 The Customer's purchase order form or the Customer's written acceptance of the Company’s quotation (“Order”) constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate.
2.2 All purchases by the Customer from the Company are on the basis of full acceptance and agreement of these Conditions by the Customer. The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.
3. PRODUCT & PRICES:
3.1 Any samples, drawings, descriptive matter, or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
3.2 All prices and products quoted by the Company either by letter, price list or a sales representative are subject to change or variation without prior notice, although every effort will be made to give notice of any changes. All prices are quoted Nett except when indicated and are exclusive of VAT. The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of Goods, which shall be invoiced to the Customer. The Customer is responsible for providing insurance for the Goods up and until delivery takes place.
4. TERMS & PAYMENT:
4.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery.
4.2 The Company may invoice the Customer for the Goods on or at any time after the completion of delivery. Payment is due for all Goods supplied by the Company within 30 days of the date of Invoice, unless agreed with the Customer. Time of payment is of the essence.
4.3 If the Customer fails to make any payment due to the Company under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclay’s Bank Plc 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 Customer shall pay the interest together with the overdue amount.
4.4 The Customer shall pay all amounts due under the Contract in full without any deductions or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or part.
4.5 The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
5.1 Delivery will take place on arrival at the Customers address and will be made by the method specified in the contract. The Company shall ensure that each delivery is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Company reference, the type of quantity of the Goods. All delivery dates are approximate and time of delivery is not of the essence. The Company will not be liable for any delay in delivery or non delivery of goods or services caused by any circumstances beyond the Company’s control including without limitation any act of God, explosion, ﬁre, ﬂood, war hostilities, accident delay in delivery or non delivery by the Company’s suppliers or any other causes or any circumstances beyond the Company’s control; on the occurrence of any of the above events the Company reserves the right to cancel or suspend the whole of any delivery. If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer on obtaining replacement of goods of similar description and quality on the cheapest market available, less the price of the Goods.
5.2 If the Customer fails to accept delivery of the Goods within 3 Business Days of the Company notifying the Customer that the Goods are ready, then, except for such a failure or delay is caused by a Force Majeure Event then:
5.2.1 delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day after the day on which the Company notified the Customer that the Goods were ready; and 5.2.2 the Company shall store the Goods until delivery takes place and charges the Customer for all related costs and expenses (including insurance).
5.3 If after 10 Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
6. RISK & PROPERTY:
6.1 The risk in the Goods shall pass to the Customer upon leaving the Company’s premises.
6.2 Title to the Goods shall not pass to the Customer until payment in cash or cleared funds has been received by the Company for which payment has become due.
6.3 Until title to the goods is passed to the Customer, the Customer will hold the Goods as the Company bailee, not remove, deface or obscure any identifying mark or packaging on or relating to the Goods and protect, store and identify the goods by reasonable means so that they can be recognised as the property of the Company. The Customer shall be entitled to sell or to use such goods in the normal course of his business but in the event of his doing so the Customer shall hold on trust for the Company such part of proceeds of the sale as may be required to satisfy all sums due to the Company with any interest payable on overdue accounts.
6.4 The Customer shall notify the Company immediately if it becomes subject to any of the events listed in clause 11.2. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy the Company may have:
6.4.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.4.2 the Company may at any time:
184.108.40.206 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
220.127.116.11 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. QUALITY GUARANTEE:
7.1 The Company warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
7.1.1 conform with their description and any applicable specification; and
7.1.2 be free from material defects in design, material and workmanship.
7.2 Subject to clause 7.3, if:
7.2.1 the Customer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1;
7.2.2 the Company is given a reasonable opportunity of examining such Goods; and
7.2.3 the Customer (if asked to do so by the Company) returns such Goods to the Company’s premises at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
7.3 The Company shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
7.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
7.3.2 the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
7.3.3 the Customer alters or repairs such Goods without the written consent of the Company;
7.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4 Except as provided in this clause 7, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 7.1.
7.5 If the goods are damaged or lost on arrival at Customer, the Company will (at its option) either replace or refund to the Customer the price of them. The Company’s liability in connection with any goods will not exceed the cost of replacement of them. The Company must be notiﬁed of any of these conditions within ﬁve Business days.
7.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
7.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
8. INTELLECTUL PROPERTY RIGHTS
In this Condition “Intellectual Property Rights” means all copyright, database rights, topography rights, design rights, trade marks, trade names, utility models, patents, domain names, trade secrets and paint formulations and any other intellectual property rights of a similar nature (whether or not registered) subsisting anywhere in the world in or associated with the Goods.
8.1 The Customer acknowledges that:
8.1.1 the Intellectual Property Rights are the Company’s (or its licensor's) property;
8.1.2 nothing in these Conditions shall be construed as conferring any licence or granting any rights in favour of the Customer in relation to the Intellectual Property Rights. The Company asserts its full rights to control the use of its trade marks within the EEA and the Customer shall assist the Company as required in preventing parallel importers from diluting the Company’s rights; and
8.1.3 any reputation in any trade marks affixed or applied to the Goods shall accrue to the sole benefit of the Company or any other owner of the trade marks from time to time.
8.2 The Customer shall not repackage the Products and/or remove any copyright notices, confidential or proprietary legends or identification from the Goods save for any removal which is a necessary result of a manufacturing process of which the Company has been previously notified in writing by the Customer.
8.3 The Customer shall not use (other than pursuant to these Conditions) or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which the Company or any associated company of the Company owns or claims rights in anywhere in the world.
8.4 The Customer shall promptly and fully notify the Company of:
8.4.1 any actual, threatened or suspected infringement of any Intellectual Property Rights which comes to the Customer's notice; and
8.4.2 any claim by any third party that comes to the Customer's notice that the sale or advertisement of the Goods infringes the rights of any person.
8.5 In the event of any claim, proceeding or suit by a third party against the Customer alleging an infringement of any Intellectual Property Right connected with the Products, the Supplier shall defend the Customer at the Supplier's expense, subject to:
8.5.1 the Customer promptly notifying the Company in writing of any such claim, proceeding or suit; and
8.5.2 the Supplier being given sole control of the defence of the claim, proceeding or suit,
and provided that the Company shall not be liable for infringements to the extent that they arise out of or in connection with modifications to the Goods made by anyone except the Company or its authorised representative, or out of use or combination of the Goods with products or third party materials not specified or expressly approved in advance in writing by the Company.
9. EXCLUSIONS OF LIABILITY:
9.1 The guarantee in clause 7 of these conditions and accepted by the Customer in substitution of any rights which the Customer might otherwise by entitled to against the Company by virtue of any express or otherwise as to the state, quality, fitness or performance of the goods.
9.2 Nothing in these Conditions shall limit or exclude the Company’s liability for:
9.2.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.2.2 fraud or fraudulent misrepresentation;
9.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.2.4 defective products under the Consumer Protection Act 1987; or
9.3 Subject to clause 8.1 and 8.2:
9.3.1 the Company shall under no circumstances whatever be liable to the Customer, 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 the Contract; and
9.3.2 the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
10.1 The Company may terminate this agreement at any time and without further obligation to the Customer by notice in writing.10.2 If the Customer becomes subject to any of the events listed in clause 10.3, or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Company, the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due. 10.3 For the purposes of clause 10.2, the relevant events are:
10.3.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
10.3.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
10.3.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
10.3.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;
10.3.5 a creditor or encumbrances of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.3.6 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
10.3.7 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
10.3.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
10.3.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.3.1 to clause 10.3.8 (inclusive);
10.3.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
10.3.11 the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
10.3.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
The Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with any claim made against the Company arising out of the performance of the Contract or any breach by the Customer of these Conditions.
12.1 The Customer undertakes that it shall not at any time during the Contract and for a period of ten years after termination disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the Company or group company, including but not limited to information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (“Confidential Information”), except as permitted by clause 12.2 The Customer may disclose the other party’s Confidential Information:
12.2.1 to its employees, officers, agents, consultants or subcontractors (“Representatives”) who need to know such information for the purposes of carrying out the Customer’s obligations under this agreement, provided that the Customer takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 12 as though they were a party to this agreement. The Customer shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 The Company reserves all rights in its Confidential Information. No rights or obligations in respect of the Company’s Confidential Information other than those expressly stated in this Condition are granted to the Customer or to be implied from these Conditions. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by the Company now or in the future.
12.4 The Customer shall comply with provisions of Data Protection Act 1998.
12.5 The Customer undertakes to indemnify the Company against any actions, claim loss, proceedings or any other costs arising from the breach of this Condition 12.
13. HEALTH AND SAFETY:
The Customer must at all times comply with all legislation relating to health and safety at work and all relevant codes of practices or other authorative guidance and shall ensure that your subcontractors so comply.
14. ANTI-BRIBERY POLICY:
14.1 The Customer shall and shall procure that persons associated with it or other persons who are involved in the purchase of the Goods in connection with the Contract shall comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
14.2 The Customer should 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.
14.3 The Customer should promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this agreement.
14.4 The Customer shall indemnify the Company against any losses, liabilities, damages, costs (including but not limited to legal fees) and expenses incurred by, or awarded against, the Company as a result of any breach of this Condition 14.
15. GOVERNING LAW AND JURISDICTION:
This Contract and all contracts between the Company and the Customer shall be governed in accordance with the laws of England and the Customer agrees to submit to the exclusive jurisdiction of the courts of England.
16.1 Assignment and subcontracting
16.1.1 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.1.2 The Customer may not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
16.2.1 Any notice or other communication given to a party under or in connections with the Contract shall be in writing, addressed to that party at its registered office (it is a company) or its principal place or business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax, or email.
16.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.2.1 :if sent by pre-paid first class post or recorded delivery, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or if sent by fax or email, one Business Day after transmission.
16.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach of default. 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 preclude or restrict the further exercise of that or any other right or remedy.
16.5 Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing by the Company.