Terms and Condition of Sale
Interpretation
Definitions:
Business Day:
A day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours:
The period from 9.00 am to 5.00 pm on any Business Day.
Conditions:
The terms and conditions set out in this document as amended from time to time in accordance with clause 12.4.
Contract:
The contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Conditions.
Customer:
The person or firm who purchases the Products from the Supplier;
Delivery Location:
Has the meaning given in clause 4.3.
Order:
The Customer's order for the Products, as set out in the Customer's purchase order form or in the Customer's written acceptance of the Supplier's quotation, as the case may be.
Product Label:
Means the label affixed to the Product by the Supplier.
Products:
The products (or any part of them) set out in the Order.
Specification:
Any specification for the Products as set out in the technical data sheet made available to the Customer by the Supplier.
Supplier:
Glaia Limited (registered in England and Wales with company number 11933341).
Warranty Period:
Has the meaning given in clause 6.1.
Interpretation:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(a)
A reference to a party includes its personal representatives, successors and permitted assigns.
(b)
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
(c)
Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(d)
A reference to writing or written excludes fax but not email.
2.1
2.2
2.3
2.4
2.5
2.6
Basis of Contract
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 law, trade custom, practice or course of dealing.
The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer must ensure that the terms of the Order are complete and accurate.
The Order shall only be deemed to be accepted when the Supplier issues a written confirmation of the Order, at which point and on which date the Contract shall come into existence.
The Customer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
Any samples, drawings, descriptive matter or advertising produced by or on behalf of the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures (whether digital or otherwise) are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.
A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
Products
The Products are described in the Specification. The Supplier reserves the right to amend the Specification if required by any applicable law or regulatory requirement, and shall notify the Customer in any such event.
4.1
4.2
4.3
4.4
4.5
4.6
Delivery
The Supplier shall ensure that each delivery of the Products is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Products, special storage instructions (if any) and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered.
Where Products are delivered in an intermediate bulk container (IBC) the Customer shall make the IBC available for collection at such times as the Supplier shall reasonably request.
Unless otherwise agreed in writing between the parties:
4.3.1
The Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location) at any time after the Supplier notifies the Customer that the Products are ready;
4.3.2
Delivery is completed on the completion of unloading of the Products at the Delivery Location;
4.3.3
The risk in the Products shall pass to the Customer on completion of delivery.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by an event outside of its reasonable control or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
If the Supplier fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall not be liable for any failure to deliver the Products that is caused by an event outside of its reasonable control or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
The Supplier may deliver the Products by instalments, which it shall invoice and which the Customer shall pay for separately. Each instalment shall constitute a separate contract. Any delay in delivery of or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1
5.2
Inspection
Upon the delivery of Products to the Customer, the Customer shall immediately inspect the Products for damage, missing quantity, defects or other non-conformities. If the Customer discovers any damaged or missing Product, or any defective or other non-conforming Product, the Customer shall note the defect on its proof of delivery; and notify Supplier in writing of the claim immediately, and in any event no later than 5 Business Days after the date of the delivery of the Product to Customer (the Inspection Period).
Without prejudice to clause 6, any Product for which the Customer does not provide written notice of rejection to Supplier during the Inspection Period shall be deemed accepted by the Customer. Prior to returning any rejected Product, the Customer must obtain authorization, including a return destination, from Supplier. Unless otherwise agreed by Supplier in writing, the Customer’s return shipment to Supplier of rejected Product shall be at the Customer's expense and risk of loss.
6.1
6.2
6.3
6.4
6.5
6.6
Quality
The Supplier warrants that for a period of two (2) years from the date of manufacture (Warranty Period), the Products shall conform with the Specification.
Subject to clause 6.3, if:
6.2.1
During the Warranty Period, the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 6.1;
6.2.2
The Supplier is given a reasonable opportunity of examining such Products; and
6.2.3
The Customer (if asked to do so by the Supplier) returns such Products to the Supplier's place of business at the Customer’s cost,
The Supplier shall, at its option and to the extent that it agrees that such Products do not comply with the warranty set out in clause 6.1, repair or replace the defective Products, or refund the price of the defective Products in full. In the event of a return of the defective Products the Supplier shall advise the Customer of the applicable returns process.
The Supplier shall not be liable for the Products' failure to comply with the warranty set out in clause 6.1 if:
6.3.1
The Customer makes any further use of such Products after giving notice in accordance with clause 6.2;
6.3.2
The defect arises because the Customer failed to follow the instructions on the Product Label or the Supplier's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Products or (if there are none) good trade practice regarding the same;
6.3.3
The Customer alters such Products without the written consent of the Supplier;
6.3.4
The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.3.5
The Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 6.1.
The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.
7.1
7.2
Compliance with Instructions/Acknowledgements
The Customer shall comply with all instructions relating to the Products as may be issued by Supplier from time to time, including, but not limited to, instructions concerning storage, handling, blending, transportation, possession, processing, safety precautions, or other measures required or recommended to be taken in order to ensure that the Products function properly and do not cause damage or injury to any property or person; and use of the Products, (collectively, Instructions), whether contained in any instructions set forth on or included in any of the Products Labels or packaging.
The Customer acknowledges that:
7.2.1
The operability and quality of the Products may sometimes be affected by factors outside Supplier’s control including without limitation weather conditions, atmospheric conditions, presence of other materials or the manner of use of application; and
7.2.2
Due to the nature of the Products the Customer should be competent in the use of the Products and should undergo a suitable period of familiarisation with the Products including without limitation adhering to the Product Label and, where applicable any trial protocols.
8.1
8.2
8.3
8.4
Title
Subject to clause 8.4, title to the Products shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Products and in which case title to the Products shall pass at the time of payment.
Until title to the Products has passed to the Customer, the Customer shall:
8.2.1
Store the Products separately from all other Products held by the Customer so that they remain readily identifiable as the Supplier's property;
8.2.2
Not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
8.2.3
Maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
8.2.4
Notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.1.2 to clause 11.1.3.
Subject to clause 8.4, a Customer who wishes to resell Products, may resell or use the Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Customer resells the Products before that time:
8.3.1
It does so as principal and not as the Supplier’s agent; and
8.3.2
Title to the Products shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
At any time before title to the Products passes to the Customer, the Supplier may require the Customer to deliver up all Products in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored, to recover them.
9.1
9.2
9.3
9.4
9.5
9.6
9.7
Price and Payment
The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
The Supplier may, by giving notice in writing to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
The price of the Products:
9.3.1
Excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
9.3.2
Excludes the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer unless otherwise agreed in writing.
The Supplier may invoice the Customer for the Products on or after the after the date of the Supplier’s acceptance of the Order.
The Customer shall pay each invoice submitted by the Supplier:
9.5.1
In accordance with the payment terms agreed by the Supplier (which may be as set out in the order or the confirmation issued by the Supplier as the case may be); and
9.5.2
In full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then without limiting the Supplier's remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10.1
10.2
10.3
10.4
10.5
Limitation of Liability
References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
Nothing in the Contract limits any liability for:
10.2.1
Death or personal injury caused by negligence;
10.2.2
Fraud or fraudulent misrepresentation;
10.2.3
Breach of the terms implied by section 12 of the Sale of Products Act 1979;
10.2.4
Defective products under the Consumer Protection Act 1987;
10.2.5
Any liability that cannot legally be limited; or
10.2.6
The Customer's payment obligations under the Contract.
Subject to clause 10.2, the Supplier's total liability to the Customer shall not exceed a sum equal to the price paid by the Customer to the Supplier.
Subject to clause 10.2, the following types of loss are wholly excluded:
10.4.1
Loss of profits (including loss of anticipated savings);
10.4.2
Loss of sales or business;
10.4.3
Loss of agreements or contracts;
10.4.4
Loss of use or corruption of software, data or information;
10.4.5
Loss of or damage to goodwill; and
10.4.6
Indirect or consequential loss.
This clause 10 shall survive termination of the Contract.
11.1
11.2
11.3
11.4
11.5
11.6
Termination
Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
11.1.1
The Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of it being notified in writing to do so;
11.1.2
The Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
11.1.3
The Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business.
Without limiting its other rights or remedies, the Supplier may suspend supply of the Products under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.1.2 to clause 11.1.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which the Customer shall pay immediately on receipt.
Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
12.10
General
Assignment and other dealings:
12.1.1
The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.1.2
The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
Confidentiality:
12.2.1
Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.2.
12.2.2
Each party may disclose the other party's confidential information:
(a) To its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.2; and
(b) As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.2.3
Neither party may use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
Entire Agreement:
The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation based on any statement in the Contract.
Variation:
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Force Majeure:
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from an event, circumstance or cause beyond a party's reasonable control.
Waiver:
12.6.1
Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
12.6.2
A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
Severance:
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 12.7, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Notices:
12.8.1
Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) Delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) Sent by email to an address notified in writing in advance by the party to be served). For the purposes the Supplier’s email address is: legal@glaia.co.uk.
12.8.2
Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
12.8.3
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Third Party Rights:
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Governing Law:
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.