In these terms, Seller means Dishman Europe Ltd and Buyer means the purchaser of the product from Seller.
Sales Contract is the agreement between Seller and Buyer for the sale and purchase of product in accordance with these terms and conditions, which may be a Purchase Order from Buyer accepted by Seller, a Work Order signed by Buyer and counter-signed by Seller, a proposal from Seller signed by Buyer and counter-signed by Seller, or any other form of legally binding Sales Contract.
Trade terms shall be in accordance with current INCOTERMS®.
2. Application of Terms
By ordering any of the products detailed in the Sales Contract, Buyer agrees to all the terms and conditions contained herein which override any additional or different terms or conditions included in Buyer’s purchase order or otherwise referred to by Buyer.
Any amendments or additions to the Sales Contract or these terms shall be valid only if agreed in writing and signed by both parties.
3. Delivery and Risk
The product shall be delivered to the location specified in the Sales Contract.
Any agreed dispatch or delivery date indicated by Seller is an approximation based on Seller’s best endeavours, and time for performance is not of the essence of the contract. Seller shall not be liable for any delay in delivery howsoever caused.
Unless specified otherwise in the Sales Contract, risk of loss or damage shall pass to Buyer upon delivery into the custody of the carrier.
Where product is to be delivered in instalments, each delivery shall constitute a separate contract and a failure by Seller to deliver any one or more instalments in accordance with the Sales Contract shall not entitle Buyer to repudiate or cancel any other contract or instalment.
4. Seller’s Warranty
Seller undertakes that the product will at the time of delivery correspond with the Seller’s specification for the product, being any specification for the product in the Sales Contract, any specification otherwise agreed in writing by Seller and the specification detailed in the Certificate of Analysis supplied by Seller for the product.
Seller will supply Buyer with current Material Safety Data Sheets (MSDS) regarding the product.
5. Intellectual Property
Seller warrants that, to the best of its knowledge, the manufacture of the Product covered by the Sales Contract does not infringe any patent in the country of manufacture. Buyer assumes all responsibility for the use of any design, trademark, trade name, or part thereof, appearing on the product at Buyer’s request.
Buyer shall indemnify Seller against any liability and costs incurred by Seller as a result of acting on Buyer’s request or advice.
Where the product is manufactured to a specification or process supplied by Buyer. Buyer is responsible for ensuring that such specification and/or process does not infringe the intellectual property rights of a third party.
Buyer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by Seller and shall not use or disclose any such confidential material save for the purposes of the Sales Contract or as required by law.
The warranties set out in paragraphs 4 and 5 above are Seller’s sole warranties in respect of the product.
Any other condition or warranty as to the quality of the product supplied under contract or fitness for any particular purpose whether arising under statute or otherwise is excluded to the fullest extent possible.
In the event of any liability on either party, whether arising from breach of contract negligence or from breach of statute, specification (except for death or personal injury caused by negligence), it is agreed that the maximum amount of damages recoverable shall be limited to the Sales Contract price for the product with respect to which damages are claimed. In no event shall either Seller or Buyer be liable for loss of profit, indirect, consequential, special, punitive or exemplary damages in connection with or arising out of this contract.
7. Material acceptance
Buyer shall inspect the product supplied under this contract immediately after delivery. If any of the supplied product is rejected because of non-conformity with the agreed specification, Buyer shall have the right to return it to Seller only after inspection by Seller. Either a) failure to give written notice of rejection within 90 days of the product being delivered to the courier by Seller or the date of the Seller’s invoice, whichever is later or b) use of the product supplied under this contract, shall constitute an unqualified acceptance of such product by Buyer and a waiver by Buyer of all claims in respect of such product.
In the event Buyer believes that the product does not conform with the agreed specification, the parties shall designate an independent testing laboratory to determine such conformity or non-conformity, as the case may be. In the absence of agreement on the identity of the testing laboratory, either party may request the Law Society of England and Wales to nominate a laboratory and the parties shall appoint the same. Each party shall promptly provide the testing laboratory with such information and samples as the laboratory may require for the purposes of its determination. The findings of the testing laboratory shall be binding on the parties, absent manifest error. The cost of such laboratory testing shall be borne by the party whose position is determined to have been in error or if the laboratory cannot place fault on either party, then the parties shall share equally the cost of the laboratory.
8. Price and Terms
Seller reserves the right to amend the Sales Contract and formally advise Buyer of such amendment by written notice at any time before shipment in the event of (a) an increase in the price, or (b) a change to the specification of the product, necessitated as a result of changes in any applicable law, regulation or duty.
Buyer will respect Seller’s payment terms as defined under the Sales Contract.
Unless otherwise stated in the Sales Contract, invoices are payable within (30) thirty days from the invoice date.
Seller reserves the right without prejudice to Buyer’s liability to pay on the due date to charge interest on any overdue balance at a rate of not less than LIBOR plus 5% calculated on a calendar day basis between the due payment date and the actual date when payment is cleared into Seller’s account.
Such rights are in addition and without prejudice to any other rights Seller may have under this contract.
Seller shall be under no obligations under the Sales Contract where Buyer has not paid the price in accordance with the Sales Contract.
In case of termination of the Sales Contract by Buyer prior to full completion of the work by Seller, Buyer shall pay to Seller a termination fee made of 100% of any work performed up to the termination, including all non-cancellable and accrued third party costs (e.g. for raw materials, subcontracted services, shipments, etc.), plus a termination fee to be mutually agreed upon in good faith by both parties.
Until payment in full has been received by Seller for all product supplied under the Sales Contract title to the product shall remain with Seller. As far as practicable the product shall be kept separate from other goods on the premises of Buyer so as to be readily identifiable as goods of Seller. If Buyer shall fail to make any payment when it becomes due or default in due performance or observance of any other obligation under this contract or enter into liquidation or receivership, Seller may then determine the contract. Upon such determination Seller shall be entitled to enter upon Buyer’s premises in order to remove any of the product to which Seller has retained title and for this purpose, Buyer shall afford Seller all reasonable assistance to locate and take possession of the product. Product supplied by Seller to Buyer at any time shall be deemed to have been processed or resold in the order in which the product was supplied.
11. Force majeure
In the event of an accident, mechanical breakdown of facilities, fire, flood, strike, labour troubles, riot, revolt, war, acts of God, or contingency beyond the reasonable control of the party affected interfering with the performance of this contract, the quantity of the product provided for in this contract shall be reduced by the amount so affected without liability but the contract shall otherwise remain unchanged.
12. Assigning and Subcontracting
Seller reserves the right to assign or sub-contract all or parts of the Sales Contract to any of its Affiliates. Subcontracting in all the other cases shall require the prior written consent of Buyer, which consent shall not be withheld or delayed unreasonably. Buyer may not assign its obligations without the written agreement of Seller.
Seller shall be entitled to terminate the Sales Contract without liability in the event the Buyer is insolvent, enters into liquidation or has a receiver, administrator or manager (or similar) appointed over its assets (or threatens to make such an appointment).
This contract shall be governed by and construed in accordance with English Law. Seller and Buyer agree to submit to English courts in respect of any dispute arising out of or in connection with this contract.