In these Terms and Conditions of business, the following meanings shall apply: “the Company” shall means KMS Adhesives Limited (Company Number 07993537) “the Customer” shall mean any person or persons, firm or company who buys or agrees to buy Goods from the Company “the Goods” shall mean the goods supplied by the Company to the Customer
2. Conditions Applicable, Basis of Sale and Goods
2.1 These Terms and Conditions shall apply to and govern all contracts for the sale of Goods entered into by the Company. All conditions of the Customer or other terms and conditions or warranties whatsoever whether communicated before or after these Terms and Conditions are excluded from the contract or any variation thereof unless expressly accepted by the Company in writing. These Terms and Conditions shall be deemed to be incorporated in any quotation received from the Company and the Customer’s own conditions shall not be regarded as a counter offer. No order submitted by the Customer shall be deemed accepted by the Company unless and until confirmed in writing by the Company’s authorised representative.
2.2 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents in connection with the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.3 The quantity, quality and description of the Goods shall be as set out on the order form unless otherwise agreed in writing between the Customer and the Company. The Customer shall be responsible for ensuring the accuracy of the order form and any information supplied to the Company.At its own expense the Customer shall be responsible for giving to the Company all necessary documents or other material and information relating to the Goods within a sufficient time to enable the Company to perform the agreement in accordance with these terms and conditions.
No order for Goods which has been accepted by the Company may be cancelled by the Customer except with the agreement of the Company and the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the costs of all labour and materials used), damages, charges and expenses incurred by the Company as a result of such cancellation.
3.1 Unless otherwise agreed in writing delivery of the Goods shall be by the Customer collecting the Goods from the Company’s premises after the Company has notified the Customer that the Goods are available for collection.
3.2 Delivery dates and times specified by the Company are approximate only. Unless expressly agreed by the Company in writing, time for delivery is not and shall not be deemed to be of the essence of the contract. The Customer shall make all arrangements necessary to take delivery of Goods whenever they are tendered for delivery.
3.3 If Goods are sold and delivered to the Customer in instalments, each delivery shall constitute a separate contract, and failure by the Company to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the contract as a whole (and or any further contracts) as repudiated.
4. Cancellation and Variation
4.1 No cancellation, suspension or variation by the Customer of any order accepted by the Company shall be valid, unless agreed by the Company in writing and such agreement may only be given on terms which compensate the Company for any loss, costs, damages, charges and expenses thereby incurred by the Company..
5. The Price and Payment
5.1 The price to be paid by the Customer for the Goods shall be the sum(s) quoted by the Company or where no quote is provided, the sum(s) shown in the Company’s price list current at the time of order, plus any applicable delivery or despatch charges. Quotations will be valid for 30 days. The Company reserves the right to alter its price to reflect any material changes in manufacturing and raw material costs, transport and fuel costs, additional costs imposed by suppliers and changes in import and export or other duties and taxes. Prices quoted will not include VAT (or such other applicable taxes) unless otherwise stated. The Customer will be liable to pay VAT (and such other taxes) where applicable in addition to the price.
5.2 The Customer shall make payment of the price plus VAT (and any other applicable tax) by the 30th day of the month following the month of invoice unless a different time for payment is specifically agreed between the parties in writing. Time for payment shall be of the essence and payment must be made without set-off or credit whatsoever unless otherwise agreed in writing by the Company.
5.3 Customers who do not hold credit accounts with the Company shall be required to make payment for Goods in full on or prior to collection or delivery of the Goods.
5.4 Where Goods are delivered in instalments, the Company may invoice each instalment separately and the Customer shall pay such invoices in accordance with these Terms and Conditions.
5.5 If the Customer is in default in paying any sum as and when it becomes due, the Company shall have the right to suspend all further deliveries until the default is made good and or to cancel the contract so far as any Goods remain to be delivered thereunder without any liability to the Customer.
5.6 Interest of 3% above the base rate of the Bank of England shall be payable by the Customer on any unpaid sum from the date such sum became due to the date of payment (both before and after judgment) The Customer shall also indemnify the Company against expenditure on all costs of recovery including without limitation legal fees, costs and disbursements reasonably incurred. Any banking charges incurred by the Company in respect of dishonoured cheques will be payable by the Customer on demand by the Company. The Company reserves its rights under the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 The Company shall have a general lien on all and any Goods for the time being under its control belonging to the Customer for all sums due and for all claims of every description by the Company against the Customer in respect of any order or account and if any sum or sums remain owing to the Company 14 days after the Customer has been given notice in writing of the exercise of such lien, the Company shall have the power to sell the whole or any part of such Goods to discharge the same sums and claims and all expenses incurred in connection with the sale of the Goods and any balance of the proceeds of such sale shall be paid by the Company to the Customer.
5.8 The Customer shall not in any event, until all monies due have been paid to the company, be entitled to pledge, or in any way charge by way of security for any reason, any of the Goods which remain the property of the Company, but if the Customer does so all monies due to the Customer shall become immediately due and payable without prejudice to any other right or remedy of the Company.
6. Title and Risk
6.1 The risk in the Goods shall pass to the Customer upon despatch from the Company’s premises for delivery or collection by the Customer (whichever shall apply) so that the Customer is responsible for all loss, damage or deterioration of the Goods or a part thereof from that time save that if the Goods are sold “ex works” and are not collected by the Customer by the due date for collection or the Customer fails to take delivery of the Goods when due, the Goods shall be at the sole risk of the Customer thereafter. Where the Goods are delivered by carrier any claims for loss or damage in transit must be made by the Customer against the carrier in accordance with any terms and conditions of business of the carrier.
6.2 Title in the Goods or any part thereof shall only pass to the Customer when payment in full in cleared funds for all Goods whatsoever supplied and all services rendered at any time by the Company has been made.
6.3 The Customer shall permit so far as it is able and shall use its best endeavours to assist any officer, employee, representative or agent of the Company to enter onto any premises where the Goods may from time to time be situated and to repossess the Goods at any time prior to title passing to the Customer and until such time as title passes the Customer shall hold the Goods as the Company’s fiduciary agent and bailee.
6.4 Should the Customer convert the Goods (or any part of them) and into a new product whether or not such conversion requires the admixture of any other goods or thing whatsoever and in whatever proportions the conversion shall be effected by the Customer solely as agent for the Company who shall have the full legal and beneficial ownership of the new products.
6.5 The Customer shall store the Goods and the new products separately and in such a way that they can be readily identified as being the products of the Company and shall immediately return the Goods to the Company should it so request.
6.6 Should Goods which are the property of the company be mixed with Goods the property of any person(s) other than the Customer, then the product thereof shall be deemed to be owned in common with such person(s).
6.7 Subject to the conditions above, the Customer shall be at liberty to sell the Goods and the new products referred to in the ordinary course of business as principal vis-à-vis sub-buyers and not as agent for the Company. The Customer shall have no authority to enter into any contract of sale on behalf of the Company and any contract shall accordingly be concluded in the name of the Customer.
6.8 The Company shall be legally and beneficially entitled to the proceeds of sale and the customer shall pay such proceeds into a separate account or otherwise shall ensure that all proceeds are kept by or on behalf of the Customer in a separate and identifiable form. In particular but without prejudice to the generality of the foregoing the Customer shall not pay the proceeds into any bank account that is overdrawn.
6.9 Upon the sale of any new products then, if the proceeds of sale exceed the price or the balance of the price of the Goods due to the Company from the Customer, then the balance of the proceeds shall be applied as follows:
6.9.1 First, reimbursing the Company any costs or expenses in taking possession or selling the new products and damages suffered by the Company as a result of any repudiation of the contract by the Customer;
6.9.2 Second, paying any sums due and owing to other creditors of the Customer in respect of other items and materials used in connection with the manufacture of the new products where the property in such items and materials has remained vested in such other creditors by reason of effective retention of title clauses and the claims of such other creditors have been notified to the Company by the Customer or his liquidator, administrator, or receiver, or by such other creditors.
7.1 The agreement between the Company and the Customer can be terminated by the Company immediately on giving written notice to the Customer in the following circumstances:-
(i) the Customer commits a material breach or series of breaches resulting in a material breach of the agreement and such breach is not remediable or is not remedied within 14 days of written notice to do so;
(ii) the Customer (a) suspends of threatens to suspend payment of its debts, (b) is unable to pay its debts as they fall due or (c) is unable to pay its debts (being a company) within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) there is any partner to whom any of the foregoing applies
(iii) the Customer (a) negotiates with its creditors negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts or (c) makes an application to court for protection from its creditors generally
(iv) the Customer passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding-up order is made in relation to the Customer
(v) a receiver or administrative receiver may be or is appointed in relation to the Customer or any of its assets;
(vi) any creditor of the Customer attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Customer’s assets, and such attachment or process is not discharged within 14 days
(vii) the Customer takes or suffers any action similar to any of the above in any jurisdiction;
(viii) there is a material change in the management, ownership or control of the Customer;
(ix) the Customer suspends trading, ceases to carry on business, or threatens to do either;
(x) the Customer (being an individual) dies or ceases to be capable of managing his own affairs;
(xi) the Company reasonably suspects that any of (ii) to (x) (inclusive) above have occurred or may occur within the following 30 days;
(xii) the Customer fails to pay any amount to the Company when due.
And the Customer shall inform the Company in writing as soon as possible after it becomes aware of the occurrence of any events in (ii) to (x) (inclusive) above.
On termination of the agreement between the Company and the Customer for any reason:
(a) the whole amount due from the Customer to the Company shall immediately become due and payable;
(b) the Company will, within10 business days, invoice the Customer for all Goods despatched or provided but not yet invoiced and the Customer will pay such invoice within a further 10 business days (unless the invoice is disputed in good faith);
(c) all sums previously invoiced shall be paid forthwith by the Customer;
(d) the accrued rights and liabilities of the parties will not be affected; and
(e) clauses which expressly or by implication are to survive termination will do so.
8.1 Subject as expressly provided in these Conditions and except where Goods are sold or services provided to a person dealing as consumer within the meaning of the Unfair Contract Terms Act 1977, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permissible by law. In particular, the Company gives no warranty that the Goods supplied are fit for any particular purpose, method or conditions of application or use, or that the bonding qualities of any adhesives will be of any certain specification, unless otherwise stated in writing by the Company.
9. Restriction of Liability
9.1 Except in respect of death or personal injury caused by the Company’s negligence the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the agreement between the Customer and the Company, for any economic loss (including but not limited to loss of profit, loss of business opportunity and damage to goodwill) or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever which arise out of or in connection with the supply of Goods (including but not limited to any delay in supplying or failure to supply the Goods in accordance with the agreement between the Customer and the Company).
9.2 Subject to clauses 9.3 and 9.4 in all other cases (being cases of direct and natural losses and damage) it is specifically provided and agreed that the compensation and damages payable under any claim or claims arising out of the contract between the parties howsoever arising shall not under any circumstances amount in aggregate to more than the contract price for the Goods forming the subject of the claim or claims.
9.3 No liability for such direct losses shall attach to the Company unless details of such losses are notified to the Company in writing within seven days of the date of delivery of the Goods, or the date of the event giving rise to such loss if it is not apparent upon the date of delivery, In cases of alleged non-delivery, claims must be notified to the Company within seven days of despatch of the Goods by the Company. In all cases full particular of advice note, number and package condition must be provided.
9.4 The Company takes all reasonable care in sourcing the ingredients for the Goods manufactured by the Company but the Company shall not be responsible or liable for defective ingredients of the Goods. The Company will assign to the Customer on request all and any rights the Company may have against its supplier(s) in respect of such defective ingredients.
9.5 For the avoidance of doubt, nothing in this agreement shall confer on any third party any benefit or the right to enforce any term of this agreement.
10. Data Sheets
10.1 The facts stated and recommendations made in data sheets provided by the Company and which relate to the user of products are based on experience of the Company and/or others are believed to be reliable. However, they are approximate only and the Company accepts no liability for any errors, omissions or other defects in data sheets. It is the responsibility of the Customer, prior to purchase, to determine by testing if necessary that the product is suitable for its intended use and purpose.
11. Force Majeure
11.1 In this agreement “force majeure” shall mean any cause preventing the company from performing all or any of it’s obligations which arises from or is attributable to acts, omissions, or accidents beyond the reasonable control of the party so prevented, including but not limited to strikes, lock-outs, trade dispute or other disturbance, act of God, war, riot, fire, flood, difficulty in obtaining workmen, fuel, materials or transport, government restrictions or the exercise of government authority, whole or partial failure of equipment or the Company’s suppliers.
11.2 If the Company is prevented or delayed in the performance of any of its obligations under the agreement with the Customer by force majeure, the Company shall not be liable to the Customer and the Company shall be immediately and without penalty entitled to cancel any agreement not yet performed in whole or in part without penalty or liability.
12. Applicable Law
12.1 These terms and conditions and the agreement between the Company and the Customer and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and the parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these terms and conditions and the agreement between the Company and the Customer or its subject matter.
If any provision of these terms or the other terms of the agreement (or part of any provision) is found by any court or other body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with such modification as is necessary to make such provision valid enforceable or legal and to give effect to the commercial intention of the parties.
Failure by the Company to exercise, or any delay in exercising, any right or remedy provided to it under these terms or the other terms of the agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy. No single or partial exercise of any right or remedy provided to the Company under these terms or the other terms of the agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
15.1 The paragraph headings in these Terms and Conditions are for identification purposes only and do not form part of these Terms and Conditions.