Terms
The customer's attention is drawn in particular to the provisions of clause 8.
1. Interpretation
1.1 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 9.00am to 5.00pm on any Business Day.
Chemical Intelligence - Chemical Intelligence Limited a company incorporated in England and Wales with registered number 08187340 whose registered office is at Part First Floor, Bateman House, 82-88 Hills Road, Cambridge, England CB2 1LQ.
Conditions - the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.
Contract - the contract between Chemical Intelligence and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer - the person or firm who purchases the Goods from Chemical Intelligence.
Delivery Location - has the meaning given in clause 4.2.
Force Majeure Event - an event, circumstance or cause beyond a party's reasonable control.
Goods - the goods (or any part of them) set out in the Order.
Order - the Customer's order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of Chemical Intelligence’s quotation, or overleaf, as the case may be.
Specification - any specification for the Goods, including any related plans and drawings, that is agreed by the Customer and Chemical Intelligence.
Warranty Period - has the meaning given in clause 5.1.
1.2 Interpretation
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assigns.
1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.2.4 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.
1.2.5 A reference to writing or written excludes fax but not email.
2. Basis of contract
2.1 These Conditions apply to and form part of the Contract between Chemical Intelligence and the Customer. They supersede any previously issued terms and conditions of supply or purchase.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the contract except to the extent that Chemical Intelligence otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of Chemical Intelligence and the Customer respectively.
2.4 Each order by the Customer to Chemical Intelligence shall be an offer to purchase the Goods subject to the Contract including these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.5 If Chemical Intelligence is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.
2.6 Chemical Intelligence may accept or reject an Order at its discretion. An Order shall not be accepted and no binding obligation to supply the Goods shall arise until the earlier of:
2.6.1 Chemical Intelligence’s written acceptance of the Order; or
2.6.2 Chemical Intelligence dispatching the Goods or notifying the Customer that they are available for collection (as the case may be).
2.7 Rejection by Chemical Intelligence of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.8 Chemical Intelligence may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply the Goods and are incapable of being accepted by the Customer.
2.9 Any samples, drawings or advertising produced by Chemical Intelligence and any illustrations contained in Chemical Intelligence’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3. Goods
3.1 The Goods are described in Chemical Intelligence’s catalogue, quotation, price list or invoice as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Chemical Intelligence against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Chemical Intelligence in connection with any claim made against Chemical Intelligence for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Chemical Intelligence's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Chemical Intelligence reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and Chemical Intelligence shall notify the Customer in any such event.
4. Delivery
4.1 Chemical Intelligence shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note that shows the date of delivery, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 if Chemical Intelligence requires the Customer to return any packaging materials to it, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Chemical Intelligence shall reasonably request. Returns of packaging materials shall be at Chemical Intelligence’s expense.
4.2 Chemical Intelligence shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Chemical Intelligence notifies the Customer that the Goods are ready.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Customer acknowledges that particularly where Goods are manufactured to order that timing is dependent on manufacturing lead times and international delivery timings. Chemical Intelligence shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Chemical Intelligence with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Chemical Intelligence fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Chemical Intelligence shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Chemical Intelligence with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of Chemical Intelligence notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Chemical Intelligence’s failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9:00 am on the third Business Day after the day on which Chemical Intelligence notified the Customer that the Goods were ready; and
4.6.2 Chemical Intelligence shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the day on which Chemical Intelligence notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, Chemical Intelligence may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.8 If Chemical Intelligence delivers up to and including 5.0% more or less than the quantity of Goods ordered the customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, Chemical Intelligence shall make a pro rata adjustment to the invoice for the Goods.
4.9 Chemical Intelligence may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Quality
5.1 Chemical Intelligence warrants that on delivery, and for a period of 12months from the date of delivery (Warranty Period), the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification and any Certificate of Conformity/Compliance provided with any Goods; and
5.1.2 be free from material defects in design, material and workmanship
PROVIDED THAT where the Goods are sold with a shelf life or expiry date of less than 12 months the Warranty Period shall equate to the period of the shelf life or expiry date of the Goods when delivered.
5.2 The Customer may reject any Goods delivered to it that do not comply with clause 5.1, provided that:
5.2.1 notice of rejection is given to Chemical Intelligence:
(a) in the case of a defect that is apparent on normal visual inspection, within 10 Business Days of delivery;
(b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent but in any event not later than 14 days after the date on which the latent defect was discovered or should reasonably have been discovered;
5.2.2 Chemical intelligence is given a reasonable opportunity of examining such Goods and given reasonable opportunity to carry out an internal review or obtain a report from the manufacturer in regards to any defects;
5.2.3 the Customer (if asked to do so by Chemical Intelligence) returns such Goods to Chemical Intelligence’s place of business at the Customer’s cost, and
5.2.4 none of the events listed in clause 5.4 apply.
5.3 If the Customer fails to give notice of rejection in accordance with clause 5.2, it shall be deemed to have accepted the Goods.
5.4 Chemical Intelligence shall not be liable for Goods failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.4.1 the Customer makes any further use of those Goods after giving notice in accordance with clause 5.2;
5.4.2 the defect arises because the Customer failed to follow Chemical Intelligence’s oral or written instructions for the storage, rotation, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.4.3 the defect arises as a result of Chemical Intelligence following any drawing, design or Specification supplied by the Customer;
5.4.4 the Customer alters or repairs those Goods without the written consent of Chemical Intelligence;
5.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions; or
5.4.6 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 If the Customer rejects Goods under clause 5.2, then Chemical Intelligence shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.6 Except as provided in this clause 5, Chemical Intelligence shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.7 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.
5.8 These Conditions shall apply to any repaired or replacement Goods supplied by Chemical Intelligence.
5.9 Where any Goods come with a manufacturer’s guarantee, Chemical Intelligence shall pass the benefit of any such manufacturer guarantee or warranty to the Customer. Details of the applicable terms and conditions, will be contained in any manufacturer’s warranty provided with the Goods.
5.10 Save where a certificate of compliance or conformity is provided the Goods are not supplied with any assurance as to whether they meet any Quality Assurance or regulatory standards. Where the Goods are supplied with a certificate of compliance or conformity they are only stated to meet the standards set out in such certificate.
5.11 The Customer shall ensure it complies with any instructions as to the storage and use of the Goods and shall ensure that it rotates the Goods to ensure that those with the shortest shelf life are used first.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 Chemical Intelligence receives payment in full (in cash or cleared funds) for the Goods and any other goods that Chemical Intelligence has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Chemical Intelligence’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify Chemical Intelligence immediately if it becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4; and
6.3.5 give Chemical Intelligence such information as Chemical Intelligence may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Chemical Intelligence receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1 it does so as principal and not as Chemical Intelligence’s agent; and
6.4.2 title to the Goods shall pass from Chemical Intelligence to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, Chemical Intelligence may:
6.5.1 by notice in writing, terminate the Customer's right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
6.5.2 require the Customer to deliver up all Goods in its possession 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 Goods are stored in order to recover them.
7. Price and payment
7.1 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 Chemical Intelligence’s published price list in force as at the date of delivery.
7.2 Chemical Intelligence may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond Chemical Intelligence’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs and increases in shipping and delivery costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Chemical Intelligence adequate or accurate information or instructions.
7.3 The price of the Goods:
7.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Chemical Intelligence at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer in addition unless the parties agree that these items are included in the sale price quoted or invoiced.
7.4 Chemical Intelligence shall invoice the Customer for the Goods, partially or in full, at any time following acceptance of the Order.
7.5 The Customer shall pay each invoice submitted by Chemical Intelligence:
7.5.1 on receipt of the invoice or in accordance with any credit terms agreed by Chemical Intelligence and confirmed in writing to the Customer on the quotation or invoice provided by Chemical Intelligence; and
7.5.2 in full and in cleared funds to a bank account nominated in writing by Chemical Intelligence, and
7.5.3 time for payment shall be of the essence of the Contract.
7.6 If the Customer fails to make a payment due to Chemical intelligence under the Contract by the due date, then, without limiting Chemical Intelligence’s remedies under clause 9, 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 7.6 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%.
7.7 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).
7.8 Chemical Intelligence may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
8. LIMITATION OF LIABILITY
8.1 Chemical Intelligence has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 per claim and in the aggregate annually. The limits and exclusions in this clause reflect the insurance cover Chemical Intelligence has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in in the Contract limits any liability which cannot legally be limited, including liability for:
8.3.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
8.3.2 fraud or fraudulent misrepresentation;
8.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.3.4 defective products under the Consumer Protection Act 1987.
8.4 Subject to clause 8.3, Chemical Intelligence’s total liability to the Customer shall not exceed the total price paid by the Customer for the Order in respect of which the claim arose.
8.5 Subject to clause 8.3, the following types of loss are wholly excluded:
8.5.1 loss of profits;
8.5.2 loss of sales or business;
8.5.3 loss of agreements or contracts;
8.5.4 loss of anticipated savings;
8.5.5 loss of use or corruption of software, data or information;
8.5.6 loss of or damage to goodwill;
8.5.7 additional costs of procuring and implementing replacements for, or alternatives to, Goods not provided in accordance with the Contract; and
8.5.8 indirect or consequential loss.
8.6 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without limiting its other rights or remedies, Chemical Intelligence may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 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 10 days of being notified in writing to do so;
9.1.2 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;
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, Chemical Intelligence may suspend provision of the Goods under the Contract or any other contract between the Customer and Chemical Intelligence if the Customer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, or Chemical Intelligence 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.
9.3 Without limiting its other rights or remedies, Chemical Intelligence 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.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to Chemical Intelligence all of Chemical Intelligence’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Chemical Intelligence shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10. Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two months, the party not affected may terminate the Contract by giving 7 days’ written notice to the affected party.
11. General
11.1 Assignment and other dealings.
11.1.1 Chemical Intelligence may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Chemical Intelligence.
11.2 Confidentiality.
11.2.1 Each party undertakes that it shall not at any time 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 11.2.2.
11.2.2 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 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 11.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.2.3 Neither party shall 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.
11.3 Entire agreement.
11.3.1 The Contract constitutes the entire agreement between the parties.
11.3.2 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 shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver.
11.5.1 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.
11.5.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
11.6 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 of the Contract is deemed deleted under this clause 11.6 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.
11.7 Notices.
11.7.1 Any notice or other communication 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 the following addresses (or an address substituted in writing by the party to be served):
(i) to Chemical Intelligence – info@chemicalintelligence.co.uk
(ii) to the Customer – the email address used by the Customer from time to time in correspondence with Chemical Intelligence.
11.7.2 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 two Business Day after posting; and
(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. In this clause (c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
11.7.3 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.
11.8 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.
11.9 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.
11.10 Jurisdiction. 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.