These are the Sales Order Terms of Wentworth Laboratories Limited (a company registered in England under no: 1309949), whose registered office is at 1 Gosforth Close, Sandy, Bedfordshire, SG19 1RB (the Seller).
1.1 The definitions and rules of interpretation in this condition shall apply in these Terms.
- Buyer: the person, firm or company who buys Goods from the Seller subject to these Terms.
- Contract: a concluded Contract between the Seller and the Buyer on these Terms.
- Goods: any Goods agreed in the Contract to be sold by the Seller to the Buyer.
- Intellectual Property Rights (IPR): All copyright, database rights, design rights, trademarks, trade names, utility models, patents, domain names and other intellectual property rights of a similar nature subsisting anywhere in the world or associated with the Goods.
- Order: the Buyer’s written instruction to buy the Goods from the Seller.
- Order Confirmation: the Seller’s written acceptance of the Buyer’s Order in accordance with clause 3.1.
- Insolvency Event: means (in relation to either party) if that party becomes insolvent or unable to pay its debts as they fall due or becomes subject to, or itself takes any steps to, invoke any proceedings relating to its insolvency, winding up, liquidation, administration or receivership or makes any composition or arrangement in respect of any of its debts.
- Warranty: the Seller will give the warranty as set out in clause 8.
1.2 Headings do not affect the interpretation of these Terms.
2. Application of Terms
2.1 These Terms shall govern and be incorporated into every Contract by the Seller with any Buyer to the exclusion of all other terms and warranties and representing the only terms upon which the Seller trades.
2.2 Acceptance by a Buyer of delivery of Goods shall constitute unqualified acceptance of these Terms and subsequent sales of Goods shall be deemed to be subject to these Terms.
2.3 Any waiver or variation of these Terms may only be made in writing signed by a General Manager of the Seller.
3. Basis of the Sale
3.1 Any estimate, quotation or the Seller price lists shall constitute an invitation to treat. Any Order placed by a Buyer shall constitute an offer, which the Seller may accept or decline. The Seller will send Order Confirmation which shall constitute legal acceptance of the Buyer’s Order at the time of sending and the agreement of a Contract.
3.2 The Seller reserves the right to withdraw or amend a quotation at any time before receipt of an unqualified order from the Buyer. Each quotation shall be valid only for the period of the acceptance stated on the quotation.
3.3 The Seller’s employees or agents are not authorised to make any representation or recommendation concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on such representations or recommendations.
3.4 Any error or omission in sales literature, quotation or other document issued by the Seller shall be subject to correction without liability on the part of the Seller.
4. Order and Specifications
4.1 The Buyer shall be responsible for ensuring the accuracy of its Order and for giving all relevant information concerning the Goods to the Seller.
4.2 The Seller reserves the right to make any changes in the specification of Goods which are required to ensure conformity with any legal requirement and which do not materially affect their quality or performance.
4.3 No Order which has been accepted by the Seller may be cancelled by the Buyer unless the Buyer indemnifies the Seller against all losses incurred as a result of such cancellation. Where an Order is for bespoke goods, indemnity will involve payment to the Seller of the entire sale price of the Goods.
5.1 Save for valid quotations supplied under clause 3, all prices will be those ruling at the date of delivery. In the case of imported Goods, prices may not be inclusive of insurance, freight handling charges and duty from country of origin to the Seller’s premises. VAT will be charged at the rate in operation at the relevant tax point date where appropriate. The Seller will adjust prices as are necessary to cover any alterations and exchange rates between date of quotation and date of delivery. On delivery the Seller shall provide the Buyer with such export documents as are necessary together with the delivery note.
5.2 All prices are exclusive of sales tax and any other similar taxes and duties which shall be paid by the Buyer in addition (if applicable).
5.3 Except for current valid quotations, the Seller reserves the right by giving written notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller or to reflect any change in delivery dates, quantities or specifications for the Goods requested by the Buyer or by the failure of the Buyer to give the Seller adequate information.
6.1 The Seller’s normal payment terms require an advance payment with order and the balance of the price payable on delivery but payment terms will be agreed by negotiation prior to placement of any order. Full payment terms will be stated on the quotation.
6.2 All payments must be made by the Buyer in the currency specified in the Seller’s invoice. All payments must be made by bank transfer to the bank account of the Seller specified in the Seller’s invoice. The Buyer is responsible for bank charges in making payment to the Seller and must ensure payment of the Seller’s invoice in full.
6.3 Time of payment is of the essence. The Seller reserves the right to claim interest from the date any invoice becomes overdue at a rate which is 4% above the current London Interbank Operating Rate (LIBOR) applicable in the United Kingdom; interest will be compounded with quarterly rests.
6.4 Non-payment by the due date will entitle the Seller to suspend further deliveries without notice.
6.5 If the Buyer fails to take delivery of goods which the Seller has notified the Buyer are ready for dispatch, the Seller shall be entitled to invoice the Buyer at any time after the Seller has notified the Buyer that the Goods are ready for collection or delivery.
7. Delivery and Risk
7.1 Times quoted for delivery are treated as estimates only. The Seller will make all reasonable endeavours to deliver on time but will not be responsible for any loss or damage caused to the Buyer by late delivery.
7.2 Goods will be delivered to the Buyer at the address agreed in accordance with clause 5.1. The risk in the Goods shall pass to the Buyer upon such delivery taking place.
7.3 Unless otherwise stated, the prices quoted do not include delivery which will be charged additionally. Standard packaging is not chargeable but special packaging will be charged at cost.
7.4 Where Goods are delivered by instalments, each delivery shall constitute a separate Contract. Failure by the Seller to deliver one or more instalments shall not entitle the Buyer to treat the Contract for other instalments as repudiated.
7.5 If the Buyer fails to take delivery of the Goods without good reason then the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage, transport, re-delivery and other incidental costs including insurance.
7.6 The Buyer must inspect the Goods promptly upon their arrival. The Buyer must send written notice of any shortages or defects in the goods which are apparent on reasonable inspection to the Seller within 7 days of arrival of the Goods.
7.7 If the Buyer fails to give notice as specified in clause 7.6 then, except in respect of any defect which is not one which would be apparent on reasonable inspection, the Buyer shall be deemed to have accepted the delivery of the Goods and the Seller shall have no other liability to the Buyer with respect to that delivery.
7.8 If the Buyer alleges that the Goods are defective it shall make them available for inspection by the Seller.
8.1 The Seller warrants that the Goods will be as described in the Seller’s quotation and will comply with manufacturer’s published specifications at the time of delivery and for a period of 12 months following delivery.
8.2 The Warranty in 8.1 is subject to the following conditions:
8.2.1 The Seller shall not be liable for any defect arising from failure to follow the Seller’s instructions or misuse of the Goods;
8.2.2 The Seller shall not be under Warranty liability if the total price for the Goods has not been paid by the due date for payment.
8.2.3 Otherwise all warranties, conditions and other terms implied by statute or law are excluded.
8.3 The Buyer must notify the Seller of any Warranty claim as set out in clause 7. If the Buyer does not so notify the Seller in writing in accordance with clause 7, the Buyer shall not be entitled to reject the Goods.
9.1 The Buyer is responsible for obtaining at its own cost such import licences and other consents in relation to the Goods as are required. If required by the Seller the Buyer shall make those licences and consents available to the Seller prior to shipment of the Goods.
10. Property and Title
10.1 Until full payment has been received by the Seller for all Goods supplied to the Buyer, the Goods shall remain the property of the Seller.
10.2 Where property in the Goods remains that of the Seller, the following terms shall apply:
10.2.1 The Buyer shall hold the Goods on a fiduciary basis as the Supplier’s bailee. The Buyer shall store the Goods carefully and ensure that they are clearly identified as belonging to the Seller.
10.2.2 The Goods shall not be mixed with other products or altered in any way.
10.2.3 The Buyer will insure the Goods for their replacement value naming the Seller as the loss payee.
but the Buyer may resell or use the Goods in the ordinary course of its business.
10.3 The Buyer grants to the Seller an irrevocable licence for the Seller, its agents and employees to enter any premises of the Buyer to ascertain whether any Goods are stored there and to inspect, count and recover such Goods.
11. Limitation of Liability
11.1 Subject to clauses 11.3 and 11.4, if the Seller is liable to the Buyer arising out of this Agreement such liability shall be limited to direct loss and damage only and shall not exceed £5m.
11.2 The Seller shall not be liable to the Buyer for any indirect special or consequential loss or damage, including loss of profit, loss of use, loss of business or business opportunity or anticipated savings.
11.3 Nothing in these terms shall limit the Seller’s liability for:
- Death or personal injury resulting from the Seller’s negligence;
- Fraud or fraudulent misrepresentation made by the Seller; or
- Any other loss which cannot be excluded or limited by applicable law.
11.4. Limitation of liability set out in clause 11.1 and 11.2 shall not apply to any indemnity given under the Contract.
12. Intellectual Property Rights
12.1 Intellectual Property Rights in the Goods belong to the Seller or to its third-party suppliers.
12.2 The Seller grants to the Buyer a perpetual non-exclusive, non-transferable licence to use for its own operational purposes the Intellectual Property Rights contained or embodied in any software or firmware incorporated as part of the Goods.
13. Intellectual Property Rights Indemnity
13.1 The Seller shall indemnify the Buyer from any losses, damages and expenses incurred by the Buyer as a result of any claim that use or possession of the Goods infringes the Intellectual Property Rights of any third party (IPR claim) provided that the Seller shall have no liability if the Buyer:
- does not notify the Seller in writing to the Seller setting out full details of any IPR claim as soon as reasonably possible;
- makes any admission of liability or agrees any settlement of any relevant IPR claim without the prior written consent of the Seller;
- does not let the Seller have conduct of or settle all negotiations and litigation arising from the IPR claim;
- does not take all reasonable steps to minimise the loss that may be incurred by it or by any third party as a result of the IPR claim.
- does not, at the Seller’s request, provide the Seller with all reasonable assistance in relation to the IPR claim.
13.2 If any IPR claim is made or is reasonably likely to be made, the Seller may at its option:
- procure for the Buyer the right to continue using and possessing the relevant Goods;
- modify or replace the infringing part of the Goods so as to avoid the infringement or alleged infringement which is the subject of the IPR claim, provided that the Goods remain in material conformance to their specification.
13.3 The Seller’s obligations under clause 13.1 shall not apply to Goods modified or used by the Buyer other than in accordance with the Contract or with the Seller’s instructions. The Buyer shall indemnify the Seller against all losses, damages and costs incurred by the Seller in connection with any claim arising from such modification or use.
14. Force Majeure
14.1 The Seller shall have no liability or responsibility for the failure of any obligation under this Agreement so long as, and to the extent to which, the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.
14.2 Where the Seller claims the benefit of this provision it shall promptly after the occurrence of a Force Majeure Event:
a) Notify the Buyer of the nature and extent of such Force Majeure Event; and
b) Use all reasonable endeavours to remove such causes and resume performance under this Agreement promptly.
14.3 For the purposes of this clause 14 a Force Majeure Event means an event beyond the control of the Seller which by its nature could not have been foreseen by the Seller or if it could have been foreseen was unavoidable, and includes acts of God, storms, floods, riots, fire, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war, armed hostilities or national or international calamity, acts of terrorism, failure of energy sources, sanctions, prohibitions on export, supervening illegality or any other cause beyond the control of the Seller.
15.1 If an Insolvency Event applies to the Buyer, then the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer. If any Goods have been delivered but not paid for the price shall become immediately due and payable.
16. Entire Agreement
16.1 These terms constitute the entire agreement between the parties in connection with the sale of the Goods and supersede any previous agreement, statement, representation or understanding given or made before the date of Order Confirmation in relation to the Goods.
16.2 Neither party relies upon any oral or written statement made by the other (whether made carelessly or not) that is not set out in these terms unless such statement was made or given fraudulently.
17.1 Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or its trading address.
17.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
17.3 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, that provision shall be severed from the Contract and the validity of the other provisions of these Terms shall not be affected.
18. Disputes and Law
18.1 All disputes arising in relation to these terms shall be referred to senior officers of each party who shall meet and attempt to settle the dispute between themselves acting in good faith within 30 days. If officers fail to resolve the dispute within 30 days then either party may refer the dispute to a mediation process in accordance with the provisions of clause 18.2.
18.2 Any dispute arising out of or in connection with any Contract entered into under these terms, including any question regarding its existence, validity or termination, shall be referred to and resolved by mediation under the Mediation Rules of the London Court of International Arbitration (LCIA), which Rules are deemed to be incorporated by reference into this clause. The number of mediators shall be one and the seat or legal place of mediation shall be London. The language to be used in the mediation proceedings shall be English.
18.3 The Contract shall be governed by the laws of England and the Buyer agrees to submit to the non-exclusive jurisdiction of the English Courts. The United Nations Convention on the International Sale of Goods shall not apply to these terms. The International Rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms 2010) shall apply, but where they conflict with these terms, then these terms shall prevail.
18.4 Nothing in this clause 18 shall limit the right of the Seller to take proceedings against the Buyer in any other court of competent jurisdiction.