TERMS AND CONDITIONS OF ASTROPOL LIMITED
The Buyer’s attention is drawn in particular to the provisions set out in “Quality and Liability” (Clause 7).
1. Definitions
1.1 `Buyer’ means any person, firm, company or organisation that purchases the Products from the Company.
1.2 `Company’ means Astropol Limited (company registration number 2902249) of unit 11, Wetheral Close, Hindley Industrial Estate, Hindley Green, Lancashire WN2 4HS and may include any other business substantially owned and controlled by Astropol Limited.
1.3 `Conditions’ means these terms and conditions.
1.4 `Contract’ means a contract between the Company and the Buyer for the sale of the Products. 1.5’ Call-off order’ means an ‘Order’ placed by the Buyer, and accepted by the Company, which is to be supplied in instalments as requested by the Buyer.
1.6 `Delivery Date’ means the date for delivery of the Products provided by the Company.
1.7 ‘Force Majeure Event’ has the meaning given to it in the “Force Majeure” clause.
1.8 `Order’ the Buyer’s order for the Products, as set out in the Buyer’s purchase order form, the Buyer’s written acceptance of the Company’s quotation, or overleaf, as the case may be.
1.9 `Products’ means the products (or any part of them) made available for sale by the Company from time to time and set out in the Order.
`Incoterms’ means the Incoterms 2020 as may be amended, revised and replaced from time to time.
2. Application of the Conditions
2.1 These Conditions shall apply to all Contracts to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may seek or purport to impose or incorporate under any purchase order confirmation of order or similar document, or which may be implied by trade, custom, practice or course of dealing. No conduct by the Company shall be deemed to constitute acceptance of any terms put forward by the Buyer.
2.2 All Orders for Products shall be deemed to be an offer by the Buyer to purchase Products pursuant to these Conditions. An 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 Acceptance of delivery of the Products shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by an authorised officer of the Company.
2.5 Any offer to purchase Products made orally shall be governed by these Conditions and the Buyer should confirm such offer in writing and clearly marked “confirmation of order”.
3. Price and payment
3.1 The Products are offered for sale at current prices as noted on the Company trade price list which are subject to change from time to time.
3.2 Unless otherwise stated all prices quoted are exclusive of VAT and, in respect of deliveries outside of mainland England, Wales and Scotland, the cost of transport, which shall be invoiced to the Buyer in addition to the price.
3.3 Quotations from the Company are based on prices applicable to quantity specified. In the event of Orders being placed for different quantities the Company shall be entitled to adjust the price of Products as ordered to take account of the variation of quantity. Any quotations issued by the Company shall only be valid for a period equal to the earlier of: (i) the validity period stated in the quotation; or (ii) if no period is stated in the quotation, [XX] days; or (iii) until the Company notifies the Buyer in writing that the quotation has been withdrawn and is no longer valid.
3.4 The price for the Products shall be subject to variation by the Company at any time prior to delivery, in the event of an increase in the cost of the Products due to:
a) any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in transport, insurance, labour, materials and other manufacturing or overhead costs); or
b) any request by the Buyer to change the delivery date(s), quantities or types of Products ordered, or the specification of the Products; or
c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
3.5 Payment to the Company shall be made no later than 30 days from the date of the relevant invoice.
3.6 Time for payment is of the essence and, without prejudice to any other rights that the Company may have, failure to make payment on the due date will allow the Company to terminate any Contracts it has with the Buyer.
3.7 The Company shall be entitled to interest on overdue payments. Interest shall accrue from the date of payment becoming overdue from day to day until the date of payment at a rate of 4% above NatWest base rate from time to time in force and shall accrue at such a rate after as well as before any judgment. The Company shall further have if it so decides the right to use the provisions under the Late Payment of Commercial Debts (Interest) Act 1998.
3.8 The Buyer shall not be entitled to withhold payment of any amount payable to the Company by reason of any dispute or claim.
3.9 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
3.10 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 Buyer against any amount payable by the Company to the Buyer.
3.11 The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering Product in satisfaction of any order notwithstanding any subsisting agreement to provide credit to the Buyer.
3.12 The Buyer shall reimburse to the Company the entire cost of representing any cheque or other instrument delivered to it in payment of any sum due by the Buyer.
4. Sample Products
4.1 In no circumstances will the Company sell its Products by sample. The supply of sample Products to the Buyer or prospective Buyers is not intended to provide them with a contractual specification of the Products or to constitute a sale or offer of sale by sample. They shall not form part of the Contract or have any contractual force.
5. Delivery of Products
5.1 Save where an Incoterm is specifically referred to in the Company’s Order acknowledgement, delivery of the Company’s Products shall be deemed to have been performed when the Products leave the premises of the Company or its agent.
5.2 In the event that the Company accepts an order from the Buyer which is to be a Call-off order supplied in instalments over an agreed period of time, the Company will deliver the scheduled Call-off goods at the appointed time. Should the Buyer delay a Call-off order in part or in full for a period of more than 90 days from the Company’s order confirmation date of the agreed Call-off order, the Company reserves the right to complete the supply of the scheduled Call-off order and cancel all further parts of the original Call-off order if any remain. If the Buyer were not to accept, or is unable to accept, such a delayed call-off delivery the Company also reserves the right to charge the Buyer for any costs (including material, delivery and handling) that may arise as a result of any failed delivery to the Buyer’s premises.
5.3 Where an Incoterm is referred to in the Company’s Order acknowledgement delivery shall be deemed to take place in accordance with the relevant Incoterm. The Company will need at least 10 days’ lead time between the date it receives the Order and the Buyer’s preferred delivery date. Any delivery dates that the Buyer may request in the Order shall not be binding on the Company. The Delivery Date is not of the essence, and any Delivery Date given by the Company is approximate only for the assistance of the Buyer and the Company shall have no liability for any failure or any delay in dispatch or delivery unless expressly agreed otherwise in writing. The Company shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
5.4 If the Company fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. The Company shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Products. If the Buyer fails to accept delivery of the Products within 3 days of the Company notifying the Buyer that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:
a) delivery of the Products shall be deemed to have been completed at 9.00 am on the third business day after the day on which the Company notified the Buyer that the Products were ready; and
b) the Company shall store the Products until delivery takes place and charge the Buyer for all related costs and expenses (including insurance).
5.5 If 10 days after the day on which the Company notified the Buyer that the Products were ready for delivery the Buyer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Products or charge the Buyer for any shortfall below the price of the Products.
5.6 Divisibility: Each delivery of Products made by the Company hereunder shall be deemed to arise from a separate contract and shall, even where it is part of series of orders or a Call-off order, be invoiced separately. Any invoice for a delivery of Products shall be payable in full in accordance with the terms of payment provided for herein without reference to and notwithstanding any defect or default in delivery of any other instalment.
5.7 The unloading of the Products on delivery from any vehicle is the responsibility of the Buyer who shall unload without undue delay.
5.8 The Buyer shall not be entitled to reject the Products if the Company delivers up to and including 10% more or less than the quantity of Products ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Buyer that the wrong quantity of Products was delivered.
5.9 The price of the Products only includes delivery to locations within mainland England, Wales and Scotland. The Company reserves the right to make an additional charge for deliveries to outside mainland England, Wales and Scotland.
5.10 The price of the Products only covers delivery during normal working days and during normal working hours. All deliveries made at the Buyer’s request on Bank Holidays, weekend and outside working hours shall be subject to such extra charges as may be specified by the Company.
6. Accuracy of Description of Products
6.1 All descriptions, specifications, drawings and particulars of weights and dimensions contained in the Company’s marketing materials are general descriptions and shall not form part of any Contract or give rise to any independent or actual liability upon the Company.
6.2 All specifications, measurements, weights and dimensions set out in our technical literature are approximate only and the Buyer acknowledges and agrees that the Products may vary from batch to batch.
6.3 Notwithstanding that the stated price may include the cost of carriage from the Company’s Premises or from any other place at which the product may be stored the risk in the Products shall pass to the Buyer upon its transfer at such location onto the carrier’s or Buyer’s transport save that where the Contract is stated to be governed by a particular Incoterm (in which case risk (but not title) shall pass in accordance with the Incoterm specified) the risk shall pass to the Buyer when the Products are delivered onto the vehicle, ship, aircraft or other form of transport.
7. Quality and Liability
7.1 The Company warrants that the Products shall be:
a) free from material defects; and
b) substantially match any description given in any technical literature produced by the Company.
7.2 The Company may from time to time make changes in the specification of the Products which are required to comply with any applicable safety or statutory requirements, or which do not materially affect the description of the Products given by the Company.
7.3 To the fullest extent permitted by law, the terms and conditions implied by the Sale of Goods Act 1979 are excluded from the Contract.
7.4 The Company gives no warranty that the Products:
a) will be fit for any particular purpose even where such purpose is made known to the Company by the Buyer; or
b) will perform in accordance with its description or in any particular manner when incorporated into or used in conjunction with any other materials or products. The Buyer acknowledges and agrees that it has conducted its own tests of the Products and has satisfied itself that the Products are suitable for any application it intends to use the Products for.
7.5 The Company shall not be liable for any defects attributable to the incorporation of the Products into the Buyer’s application where the Products are not designed for the purpose of the Buyer’s application.
7.6 In the event of any breach of these Conditions or Contract between the parties by the Company the remedies of the Buyer shall be limited to damages. Nothing in these Conditions shall limit or exclude the Company’s liability for:
a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
b) fraud or fraudulent misrepresentation; or
c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
d) defective products under the Consumer Protection Act 1987; or
e) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
7.7 Subject to the above:
a) The Company shall under no circumstances whatsoever be liable to the Buyer, 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
b) The Company’s total liability to the Buyer 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 the price of the Products purchased by the Buyer pursuant to the relevant Contract or that instalment where it is a Call-off contract or series of orders.
c) Time Limitation. The Buyer shall inspect the Products on delivery and shall within 3 working days of the Goods arrival at the Buyer’s premises or when the Buyer has had first sight of the Products (whichever is the earlier) notify the Company of any defect, shortage in quantity or damage that should be apparent upon visual inspection. Any hidden defects that could not be seen upon visual inspection should be notified to the Company as soon as they become apparent and, in any event, within 3 business days of when they become apparent.
d) In the event that the Buyer notifies the Company of a defect, the Buyer shall afford the Company an opportunity to inspect the Products if the Company thinks it necessary to do so within a reasonable time following the report of the defect and before any use is made of them. If the Buyer shall fail to comply with these provisions the Products shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of the Products and the Buyer shall be deemed to have accepted the Products.
e) If the Products are not in accordance with the Contract for any reason the Buyer’s sole remedy shall be limited to the Company making good any shortage by replacing such Products or, if the Company shall elect, by refunding a proportionate part of the price.
8. Retention of title
8.1 The risk in the Products shall pass to the Buyer on completion of delivery.
8.2 Title to the Products shall not pass to the Buyer until the Company has received payment in full (in cash or cleared funds) for:
a) the Products supplied under the Contract; and
b) any other products or services that the Company has supplied to the Buyer.
8.3 Until title to the Products has passed to the Buyer, the Buyer shall:
a) hold the Products on a fiduciary basis as the Company’s bailee; and
b) store the Products separately from all other Products held by the Buyer so that they remain readily identifiable as the Company’s property; and
c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products; and
d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
e) notify the Company immediately if it becomes subject to any of the events listed in the Termination and Insolvency clause; and
f) give the Company such information relating to the Products as the Company may require from time to time, but the Buyer may resell or use the Products in the ordinary course of its business.
8.4 If before title to the Products passes to the Buyer the Buyer becomes subject to any of the events listed in the Termination and Insolvency clause 9, or the Company reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Buyer to deliver up the Products and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Products are stored in order to recover them.
9. Termination and Insolvency
9.1 If the Buyer:
a) fails to make payment for the Products in accordance with the Order invoice in respect of a Contract; or
b) commits any material breach of the terms of these Conditions; or
c) becomes subject to any of the Insolvency Events (defined below in 9.2),
d) or the Company reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly.
Then, without limiting any other right or remedy available to the Company, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer or cancel or suspend all further deliveries under the Contract or under any other contract between the Buyer and the Company without incurring any liability to the Buyer, and all outstanding sums in respect of Products delivered to the Buyer shall become immediately due.
9.2 The Insolvency Events are:
a) the Buyer 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
b) the Buyer 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; or
c) 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 Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer; or
d) a creditor or encumbrancer of the Buyer 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; or
e) 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 Buyer; or
f) a floating charge holder over the Buyer’s assets has become entitled to appoint or has appointed an administrative receiver; or
g) a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets; or
h) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in the above bullet points; or
i) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business; or
j) the Buyer’s financial position deteriorates to such an extent that in the Company’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. Cancellation
10.1 The Company may cancel a Contract at any time before the Products are delivered by giving written notice. On giving such notice the Company shall promptly repay to the Buyer any sums paid in respect of the Contract price. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
10.2 No cancellation of the whole or any part of any Order by the Buyer is permitted except where expressly agreed in writing by an authorised officer of the Company and on terms which will indemnify the Company against any loss incurred.
10.3 Where the Products are returned by the Buyer without the Company’s consent other than under the provisions of these Conditions they will not be accepted for credit.
11. Intellectual property
11.1 Any intellectual property relating to the Products is owned by the Company or its licensors. No right or licence in relation to any intellectual property rights subsisting in the Products is granted to the Buyer under the Contract.
11.2 The specifications and designs of the Products (including the copyright, design right or other intellectual property in them) established between the parties shall be the property of the Company.
11.3 Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Company then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Products shall not infringe the rights of the Buyer or any third party.
12. Force Majeure
12.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
12.2 A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors
13. Assignment
13.1 The Buyer shall not assign, transfer, purport to assign or transfer any Contract or any part of a Contract to any third party.
13.2 The Company may at any time assign, transfer, purport to assign or transfer, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14. Full and Complete Conditions
14.1 These Conditions contain the full and complete understanding between the parties in connection with a Contract and supersede all prior arrangements and understandings whether written or oral appertaining to the Contract and these Conditions may not be varied except by an instrument in writing signed by the Buyer and the Company.
14.2 The Buyer 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.
15. Data Protection
15.1 The Buyer warrants they do and shall continue to comply with the provisions of the Data Protection Act 2018.
16. Notices
16.1 Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the Company at its address as detailed herein or such other address as the Company may from time to time notify the Buyer in writing and shall be deemed to have been served and sent by post 48 hours after posting.
17. Severability
17.1 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.
17.2 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.
17.3 Third Parties. A person who is not a party to the Contract shall not have any rights under or in connection with it.
18. Governing law
18.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.