Terms and Condition of Sale
AKZO NOBEL POWDER COATINGS LIMITED - CONDITIONS OF SALE
1.1 These Conditions contain the entire agreement in connection with Products and/or Services and may only be modified or supplemented by separate written agreement between Seller and Buyer. All other terms and conditions, express or implied, present or historic (including any statements made in any brochure or advertising literature of Seller) are excluded, save in the case of fraud. Unless expressly and specifically agreed in writing to the contrary, Seller will only contract with Buyer on these terms and conditions and will not accept any terms and conditions of Buyer.
1.2 In these Conditions, terms defined in the Incoterms (current edition) have, unless otherwise specified, the same meaning and:
“Affiliate” means in relation to any company or unincorporated organisation, a company or unincorporated organisation which controls, is controlled by or is in common control with it;
“Buyer” means the person or entity buying the Products and/or Services or, if agent for another, that person or entity and the other jointly and severally;
“Products” means the products stated in Buyer’s purchase order and include their packaging and any replacement products;
“Seller” means Akzo Nobel Powder Coatings Limited;
“Services” means that technical advice (if any) given by or on behalf of Seller in connection with the Products, whether being specific advice given to Buyer or whether in any of Seller's technical literature including any advice given by any technical representative of Seller made available by Seller at Buyer's site or at any third party premises for this purpose;
“Specification” means that (if any) included in Buyer’s purchase order or any other written specification expressly accepted by Seller.
2. DELIVERY AND/OR PERFORMANCE
2.1 Each and every purchase order from Buyer is a contractual offer by Buyer to purchase the Products and/or Services specified in the purchase order and incorporates these Conditions. The purchase is order is deemed to have been accepted by Seller only if Seller either (i) accepts the purchase order with an order acknowledgement; or (ii) materially performs its obligations under the purchase order. If Seller requires further information from Buyer, the purchase order shall not be deemed to have been accepted until and unless Buyer has provided the requested information and Seller has expressly accepted the provided information.
2.2 Once accepted by Seller, purchase orders may not be cancelled by Buyer without Seller’s prior written agreement and Buyer agrees to indemnify Seller, in full, for all costs incurred by Seller as a result of the order’s cancellation.
2.3 Delivery, despatch, or performance dates quoted are given by Seller in good faith, but time of delivery, despatch or performance shall not be of the essence. Seller will use reasonable endeavours to deliver the Products and/or perform the Services on the specified date, but failure to deliver the Products and/or perform the Services on the specified date shall not entitle Buyer to claim any damages, losses, costs or expenses, or to terminate the contract.
2.4 Seller may reduce quantities delivered to Buyer if sufficient stock is unavailable for Buyer’s order. Seller may deliver in instalments, each of which will constitute a separate contract. Any failure to deliver an instalment or any claim by Buyer in respect of an instalment will not entitle Buyer to repudiate the whole contract.
2.5 Delivery will be DAP and Buyer is responsible for unloading of Products. Unless specified in the Buyer’s purchase order, delivery will be to such place as Seller may agree or reasonably specify prior to delivery.
2.6 Packaging is not returnable unless otherwise agreed in writing by Seller. Credit will be given to Buyer if packaging is returned empty, clean, securely closed and in good condition within sixty (60) days after receipt by Buyer. Any special packaging requirements will incur an additional charge.
2.7 Each delivery and/or performance will be treated as a separate contract. Unless otherwise expressly agreed in writing, Seller may deliver and/or perform in part and any failure to perform or deliver or any related breach of contract by Seller will not affect any other delivery and/or performance. Buyer will take delivery of Products on any day up to the date specified or agreed by Seller or (if none) within a reasonable time. Buyer will bear all storage and other costs (including insurance) arising from Buyer's failure to comply with the contract.
2.8 Conclusive evidence of delivery will be (i) if Products are sold FAS, FOB, Ex Works, Free Alongside Quay (FAQ) or to Buyer's agent, an on-board bill of lading, a mate's receipt or other document in proof of such delivery, (ii) if Seller or its carrier is unable for any reason to place Products on board ship at the place of delivery, a warehouse receipt for Products, (iii) if Products are sold CIF or C&F (or CFR), a receipted bill of lading or way bill, or (iv) in all other cases, a receipt from a carrier or the Buyer.
2.9 If Seller undertakes to obtain any licence(s) required for the export of Products by Seller, Buyer will comply with any such licence(s) and will obtain and comply with all other necessary licences, permits and consents (including all other export/import licences).
2.10 Buyer is responsible for checking and signing for all deliveries and by signing the Buyer indicates that the delivery received is complete and in good condition. If the delivery is short or deemed to be damaged this must be highlighted to the delivery company and the delivery note must be signed for as short or damaged.
3. PRICE AND PAYMENT
3.1 Where a list price is provided or made available for the Products and/or Services, the price charged to Buyer will be the list price applicable on the day the Products and/or Services are ordered subject only to any applicable discount which may be agreed between Buyer and Seller, whether or not any increase has been notified to Buyer, and even if a different price is specified in Seller’s quotation, in Buyer’s purchase order, or Seller’s order acknowledgement.
3.2 Where a price list has not been provided or made available for the Products and/or Services, the contract price is agreed to be subject to increase where there are changes beyond Seller’s reasonable control in the cost to Seller (including raw material or transport costs, legislative or regulatory changes, or exchange rate fluctuations) of supplying the Products and/or Services.
3.3 All prices are exclusive of VAT, duties, tariffs and other similar charges which shall be added to the price of the Products and/or Services. Buyer shall bear all charges Seller incurs where Seller agrees to payment by way of negotiable instrument.
3.4 Seller reserves the right to set minimum order quantities and to charge Buyer for all costs incurred by Seller in fulfilling orders below that minimum order quantity.
3.5 Any delivery charge will be at cost or as otherwise agreed in writing. Buyer will ensure that any vessel receiving Products as “ship stores in transit” is entitled to receive such stores free of value added taxes and other duties.
3.6 Unless otherwise agreed in writing by Seller, payment is due thirty (30) days from date of invoice. Seller may require security for payment before despatch or performance.
3.7 Payment may be made in any freely negotiable currency using the spot rate of exchange shown on the relevant Reuters screen (or, if there is no such screen then available, then offered by Midland Bank plc in the foreign exchange market) on the earlier of the date on which payment is made and the due date of payment. Seller reserves the right to recover any loss on exchange due to delays in payment.
3.8 Unless specifically (and separately) agreed that price(s) are to be fixed, Seller may increase prices for undelivered balances and/or unperformed Services in accordance with increases in Seller's costs and/or general price list increases occurring after the date of acceptance of order but before despatch and/or performance. Buyer will pay any increases in delivery costs after the date of acceptance of order.
3.9 In the circumstances described in clause 7.2, clause 2.4 will not apply and all unpaid balances owing to Seller from Buyer will become a debt immediately due and payable to Seller, whether or not property in Products has passed to Buyer.
3.10 Time of payment is of the essence of the contract. Without prejudice to any other remedy Seller may charge interest at 4% above HSBC Bank plc base rate for the time being per annum (to accrue on a daily basis from the date the sum is due until the sum is paid) on any sum which is not paid on the due date after as well as before any judgment.
3.11 Seller may appropriate sums received from Buyer against any debt whatsoever due to Seller from Buyer (irrespective of any purported appropriation by Buyer) and may, without prejudice to any other right or remedy, by notice in writing to Buyer, set off any or all of the monies owing by Buyer or any of its Affiliates to Seller for the supply of products and/or services against any indebtedness of Seller or any of its Affiliates to Buyer or any of its Affiliates. In no circumstances may Buyer withhold payment or make any set-off on any account.
3.12 Buyer will on demand indemnify Seller against all costs, charges, expenses and legal costs incurred by Seller in recovering sums owing by Buyer (including without limitation in seizure of vessels).
4.1 Other than for samples or goods sold as obsolete or sub-standard, Seller warrants (“the Warranty”) that upon delivery Products are sold with good title, are made with sound materials and workmanship, comply with Seller's then current published product data sheets and comply with the Specification. If Products correspond to any sample supplied or accepted by Seller they will be deemed to comply with the Warranty.
4.2 Seller does not warrant that Products are fit for any particular purpose or an intended use by Buyer and Buyer will satisfy itself that Products are so fit.
4.3 Where Seller has specifically charged for Services, Seller will provide the Services with reasonable care and skill.
5. LIMITATIONS OF LIABILITY
5.1 Seller will not be liable under clause 4 unless Buyer satisfies Seller that it has strictly complied with any and all instructions of Seller relating to Products and Services. Seller will not be liable under clause 4 in respect of any Products which are used after notice has been given that Products fail to comply with the Warranty.
5.2 Buyer shall have no right to reject any deliveries of Products on the grounds of variation of quantity from Buyer’s purchase order where such variation is not more than 10% or not less than 10% of the quantity of Products ordered.
5.3 Buyer will examine Products within fourteen (14) days after delivery. Delivery will be determined in accordance with clause 2.2 of these Conditions. Buyer will then immediately but, in any event within 30 days of delivery, notify Seller in writing of any incomplete or failed delivery, loss or damage during carriage, shortage of weight or quantity or if Products fail to comply with the Warranty and will in the case of damaged Products be entitled to notify Seller that it rejects all or any part of the damaged Products in that delivery. In case (i) the Products fail to comply with the Warranty and this failure was not apparent on inspection; or (ii) the Services fail to comply with clause 4.3 , Buyer will notify Seller of the failure, in writing, within 30 days after the date when Buyer became or ought reasonably to have become aware of the failure. Unless Buyer so notifies Seller Buyer will be treated as having waived all claims connected with the matter which should have been notified. Where notification is so made no action whatsoever may be brought against Seller in connection with Products, Services and/or the contract unless proceedings are issued against Seller within two (2) years after Buyer became or ought to have become aware of the circumstances giving rise thereto.
5.4 Provided notification is made within the time periods stated in clause 5.3 and it is shown to Seller’s reasonable satisfaction that Products fail materially to comply with the Warranty, Seller will be given a reasonable opportunity to correct such failure. If the failure is not corrected, Seller will at Seller’s option either refund the purchase price (or, if the Products have depreciated for reasons other than Seller’s default or been used or put into process, a reasonable part of the purchase price), or replace part or the whole of the Products (if reasonably practicable) within a reasonable time, free of charge. Such correction, refund or replacement will, subject to clause 5.7, be Seller's sole liability in relation to any such failure and will in no circumstances exceed the invoice value of the Products in question.
5.5 Products which are alleged not to comply with the Warranty will as far as possible be preserved for Seller's inspection, and will be returned to Seller (at Seller’s cost) if Seller so requests. Buyer will be deemed to have waived any and all of its rights (whether contractual, non-contractual, statutory or otherwise) in respect thereof unless the Seller has complied with this clause 5.5.,
5.6 Without prejudice to any other limitation of Seller’s liability (whether effective or not) and so far as permitted by English law:
- In no circumstances whatsoever (including any fault or default of Seller) will Seller be liable for:
- any pure economic loss, loss of profit, loss of business, anticipated saving, depletion of goodwill, rectification costs or (subject to clause 5.7) any third party claims, in each case whether direct, indirect, or consequential, or for any indirect or consequential losses (howsoever caused and whether or not foreseeable) which arise out of or in connection with the contract, the Products, the Specification and/or the Services;
- the incompatibility of any Products supplied by Seller with the products of other manufacturers or suppliers;
- inadequate or incorrect surface preparation or coating application work carried out by, or the faulty equipment or product of Buyer or any third party:
- any representations, advice or assistance given or omitted to be given in connection with Products, Services, the Specification or the contract, other than Services specifically charged for by Seller.
- the supervision or quality control (or lack thereof) by or on behalf of Buyer or any third party.
- In any event, except as provided under clause 5.4, Seller’s total aggregate liability under any proceedings or law in connection with Products, Specification, Services or the contract is limited to the amount Seller has charged for the Products and/or Services (as applicable) that the failure or default relates to. For the avoidance of doubt, this clause 5.6(b) will not affect any written performance guaranteed Seller has given to Buyer.
5.7 Notwithstanding any clause in these Conditions:
- Seller does not exclude or restrict any liability which cannot be excluded or restricted as between Buyer and Seller, including in respect of a Buyer who deals as a consumer, as a matter of law under any applicable legislation.
- Buyer will promptly notify Seller of any claim against Buyer under any consumer protection legislation granting rights to consumers which Seller cannot by law exclude or restrict. Seller then will only be liable to Buyer in the event Products were defective (within the meaning of applicable legislation) at the time of delivery and Seller will not be liable to the extent that any liability arises from any act or omission of Buyer.
5.8 The Warranty and Buyer's remedies under clause 5 are in substitution for any other warranties, obligations, representations, liabilities, terms or conditions (whether they are express or implied, or arise in contract, tort, or otherwise) in connection with Products and/or Services (including, without limitation, any relating to satisfactory quality, fitness for purpose, conformity with description or sample, care and skill or compliance with representations) which are hereby expressly excluded.
5.9 Unless specifically stated otherwise in these Conditions, Buyer's sole remedy will be in damages. This clause 5 applies notwithstanding any fundamental breach or breach of a fundamental term of the contract by Seller.
6. EVENTS BEYOND SELLER'S REASONABLE CONTROL
Seller shall not be liable for any delay or failure in performing its obligations under the contract where the delay or failure arises, directly or indirectly, from any circumstances beyond Seller’s reasonable control (whether or not involving Seller’s negligence), which shall be deemed to include industrial disputes (whether or not Seller is directly involved), shortage of materials at the market rates, legislative or regulatory changes, action by any governmental authority, epidemic/pandemic, customs related checks or inspections at any border, high demand for, or delay in, transportation services, or any prevention or hindrance on a delivery operator’s ability to operate deliveries. In the event of any such delay or failure, Seller shall be entitled to suspend the contract by giving written notice to Buyer. If any such delay or failure continues for more than 21 days, Seller shall be entitled to terminate the contract with immediate effect by giving written notice to Buyer. In the event of such termination by Seller, (i) Buyer shall pay for the Products delivered and/or Services provided; and (ii) Seller shall return the price of any undelivered Products or Services not performed to Buyer (if paid), but Buyer shall not be entitled to any other remedy whatsoever under or in connection with the contract.
7. TERMINATION AND SUSPENSION
7.1 Seller shall be entitled to immediately terminate/suspend the contract:
- if Buyer materially or consistently breaches the contract;
- if Buyer undergoes a change of control as defined in section 416 or 480 of ICTA 1988;
- if any of the events described in clause 8.4 occur or are, in Seller’s reasonable opinion, likely to occur;
- at any time subject to at least 7 days’ notice; or
- where the contract is for a fixed price, there has been a substantial increase in Seller's costs of manufacture and supply of Products and/or Services between the date of contract and date of despatch arising from circumstances beyond Seller's reasonable control and Buyer has failed within thirty (30) days of Seller notifying Buyer of such increase to recognise such increase.
7.2 On termination/suspension of the contract for whatever reason:
- all amounts invoiced by Seller to Buyer, whether or not due for payment, shall become due immediately;
- Buyer’s right to possession of the Seller’s Products shall terminate immediately; and
- Seller may (without prejudice to any of Seller’s other rights) recover or resell the Seller’s Products and may enter Buyer’s premises for that purpose.
8. RISK AND TITLE
8.1 Risk in Products will pass to Buyer upon delivery and, notwithstanding clause 8.2, Seller will have no responsibility in respect of the safety of the Products thereafter.
8.2 Notwithstanding delivery, the legal and equitable ownership in the Products shall remain in Seller until payment is received by Seller in full in respect of:
- The price of the Products;
- all other sums due from Buyer under the contract;
- all sums due from Buyer or its Affiliate under any other contract whatsoever; and
- all sums due from Buyer or its Affiliate other than under the contract.
8.3 Buyer will insure Products against all usual risks to full replacement value until ownership passes to Buyer. Until such time as the property in the Products passes to Buyer, Buyer shall:
- hold the Products (“Seller’s Products”) on a fiduciary basis as Seller’s bailee;
- not destroy, deface or obscure any identifying marks of the Seller’s Products;
- Not pledge or allow any lien, charge or other interest to arise over the Seller’s Products;
- Maintain the Seller’s Products in satisfactory condition; and
- Store the Seller’s Products separately from all other goods of Buyer or any third party in such a way that they remain identifiable as Seller’s property.
8.4 Buyer’s right to possession of the Seller’s Products shall terminate immediately if:
- Buyer is (or Seller, acting reasonably, believes that Buyer is) unable or admits its inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;
- A moratorium is declared in respect of any indebtedness of Buyer;
- Any corporate action, legal proceedings or other procedure or step is taken in relation to:
- The suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of Buyer;
- A composition, assignment or arrangement with any creditor of Buyer;
- The appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of Buyer or any of its assets;
- The enforcement of any security over any assets of Buyer; or
- Any analogous procedure or step is taken in any jurisdiction.
- Buyer enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of Buyer, or a resolution is passed or a petition presented to any court for the winding-up of Buyer or for the granting of an administration order in respect of Buyer;
- Buyer ceases to trade, or Seller reasonably apprehends that Buyer shall cease to trade and serves notice of the same to Buyer;
- Seller notifies Buyer that Buyer is in default for more than 7 days in any payment due to Seller;
- Any of the events referred to in paragraphs (a) to (e) of clause 7.1 above occur;
- The contract is terminated for any reason.
8.5 If Buyer’s right to possession of the Seller’s Products terminate for any reason, Seller shall be entitled to:
- Repossess the Seller’s Products; and
- To be paid any sums which Buyer holds as Seller’s fiduciary.
8.6 Buyer hereby grants Seller, its agents and employees an irrevocable licence to enter, at any time, any premises or vehicles where the Seller’s Products are or may be stored by or for Buyer, in order for the Seller’s Products to be inspected, or where Buyer’s right to possession of the Seller’s Products has terminated, to recover them. Buyer shall take all necessary steps to facilitate repossession of Seller’s Products and, pending such repossession, Buyer shall continue to store the Seller’s Products in accordance with clause 8.3.
9. THIRD PARTY CLAIMS
9.1 Buyer will indemnify Seller against any liability incurred by Seller: (i) from incorporating property of Buyer in Products or complying with any Specification or other instruction of Buyer relating to Products; and/or (ii) arising from the use of or dealings in Products by or on behalf of Buyer, except as provided in clause 5.7.
9.2 Each party will promptly notify the other of any relevant claim under the contract (including, without limitation, under Clause 5.7) and will comply with the other's reasonable requirements to minimise and/or avoid further liability.
10.1 INFORMATION AND COMPLIANCE WITH LAWS
10.1 Buyer will ensure that all Products are safely and lawfully received, stored, maintained, used or applied by Buyer and will obtain relevant information in Seller's possession relating thereto.
10.2 Buyer will ensure that all appropriate safety information (whether supplied by Seller, Buyer or another) is distributed and drawn to the attention of customers and all others (including Buyer's employees) who require it for the safe handling or use of Product and will promptly supply to Seller all information and assistance required for Seller to execute Buyer's order.
10.3 Buyer will comply with all relevant and applicable legislation, rules, regulations, codes of practice, guidance and statutory requirements that from time to time come into force, including, without limitation, any of the preceding that relate to competition, anti-corruption, bribery and/or export controls.
11.1 Seller own the copyright, trademarks, design right and all other intellectual property rights in the Products and Buyer agree that these rights may not be used in any way without Seller’s written consent. Buyer agrees to indemnify Seller for any damages, losses, costs, expenses and legal fees, whether direct or indirect, that Seller has incurred or will incur as a result of any and all breaches of Seller’s copyright, trademarks, design right or any other intellectual property rights in the Products..
11.2 Buyer may not use any of Seller’s trademarks on altered Products, remove or alter any of Seller’s trademarks, add any marks, signs or trademarks on the Products, or otherwise injure or dilute the reputation of any of Seller’s trademarks or tradenames.
11.3 The word “including” shall not limit the generality of any preceding words.
11.4 Seller is entitled to assign the contract or sub-contract any of Seller’s obligations under the contract. Buyer may not assign the contract without Seller’s prior written consent.
11.5 No amendment or variation of these Conditions or the contract shall be effective unless it is in writing and agreed by Seller. If Seller accepts any cancellation, amendment, variation or suspension of the contract by Buyer, such acceptance is subject to Buyer reimbursing Seller for all costs incurred by Seller in connection with the cancellation, amendment, variation or suspension of the contract.
11.6 Any notice under the Contract shall be in writing and, unless delivered to a party personally, shall be left at or sent by prepaid first class post or prepaid recorded delivery or facsimile to the address of the party as notified in writing from time to time (deemed service upon delivery, if posted, 48 hours after posting and, if by facsimile, 3 hours after having been sent). Qualified acceptances by Buyer on delivery notes will not constitute notice of any claim or acceptance by Seller of any such qualification.
11.7 No waiver by Seller of any breach of Buyer’s obligations shall constitute a waiver of any other prior or subsequent breach. Seller’s rights shall not be affected by any delay, failure or omission to enforce any provision of the contract.
11.8 If the whole or any part of the contract is invalid or unenforceable, that invalidity or unenforceability shall not affect the validity or enforceability of any other provisions or part-provisions of the contract.
11.9 The price of the Products, the Services and the commercial terms of these Conditions, the Specification and any contract are commercially sensitive and confidential to the Seller and Buyer agrees to keep them secret and confidential for a period of ten (10) years from the date of the contract. Buyer may disclose this information where required by law, court order, or regulation or act of any governmental authority, provided (to the extent permissible by law) it has notified Seller in advance and agreed the scope of disclosure with it.
11.10 Unless expressly provided in the contract, no term of it is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
12.1 The contract, these Conditions and any claim or dispute arising under or in connection with any of them shall be subject to English law. Buyer hereby irrevocably agrees, for Seller’s exclusive benefit, that the English courts will have sole and exclusive jurisdiction to determine any claim or dispute arising under or in connection with the contract or these Conditions. Notwithstanding this, Seller may bring claims in any other court of competent jurisdiction.
Registered in England. Registered No: 01725413
Registered Office: The AkzoNobel Building, Wexham Road, Slough, SL2 5DS