Terms & Conditions of Sale

Section 1

1.1 These General Conditions, together with any Special Conditions endorsed on or appended to the Confirmation of Sale here or overleaf, shall constitute the entire agreement between Sellers and Buyers as to the Contract of Sale and shall override any representative, warranty or other statement to the contrary and any other terms and conditions of whatsoever kind and howsoever formulated, whether written or oral, expressed or implied. Any general or special terms and conditions of purchase proposed by buyers shall not become binding on Sellers unless expressly accepted by Sellers and incorporated into Sellers’ Special Conditions.

1.2 In the event of any conflict between any General and Special Conditions, the special conditions shall prevail.

1.3 Any reference to “delivery” in Sellers’ General and Special Conditions shall be construed as a reference to “delivery and/or shipment”.

1.4 No variation of any Sellers’ General and/or Special Conditions shall be of any effect unless expressly agreed in writing by Sellers. No waiver or indulgence by Sellers shall prejudice them in the full exercise of their rights and remedies under this Contract.

1.5 Buyers may not assign any of their rights or obligations under this Contract without Sellers’ prior consent in writing.

Section 2

2.1 If any new Import, Customs and/or Excise duty or levy shall be imposed on any of the goods or if the rate of any existing duty or levy on any of the goods shall be increased and should such duty or levy be payable under the Contract by Sellers, or if by reason of import embargo or restriction or curtailment of governmental or ECC subsidies, Sellers are obliged to pay an increased price for the supply of the goods after taking into account such embargo restriction or curtailment, Sellers shall be entitled to increase the Contract Price by such amount as may be necessary to compensate them for such imposition for increase.

2.2 The Contract Price is based on freight charges and any surcharges ruling at the date of the Contract. Any new surcharges payable at the time of importation, or any increase in an existing surcharge, shall be for Buyers’ account.

2.3 Any war and/or strike risk premium in excess of 0.5% of the transport of the goods from the country of origin to the place of delivery shall for Buyers’ account. The rate of such insurance shall not exceed the rate ruling in London at any time of shipment or date of vessel’s sailing, whichever may be adopted by underwriters.

Section 3

3.1 Unless otherwise expressly agreed in the Special Conditions, Sellers shall have the option to deliver up to +/-10% of the Contract Quantity or weight of the Goods.

3.2 Sellers give no warranty that the Goods will be fit for any specific purpose or use.

3.3 The goods are not warranted free from defect rendering same unmerchantable, which would not be apparent on reasonable examination, any statute or rule of law to the contrary notwithstanding,

3.4 Any claims by Buyers regarding specification, analysis condition, quality, or otherwise in relation to the Goods shall be notified to Sellers within three (3) working days after discovery thereof, and in any event within ten (10) days after receipt by the Buyer. Failing such notification, all claims against Sellers in relation to the Goods of whatsoever kind and howsoever arising, shall be waived and absolutely barred, Buyers shall be responsible for notifying carriers and insurers of claims and making such formal claims as are necessary. In the event of Buyers’ failure to notify or make claims within appropriate time limits all claims against Sellers in relation to the goods or whatsoever kind and howsoever arising shall be waived and absolutely barred,

3.5 In the event of any such notification, Sellers shall be entitled to arrange for the Goods to be inspected as soon as reasonably practicable. Any handling of, or interference or dealing with the Goods whatsoever or howsoever by Buyers prior to such inspection shall automatically be deemed to be unconditional acceptance of the Goods.

3.6 In the event of it being proved and certified by an independent Surveyor or analyst that the Goods were not in conformity with the requirements of this Contract, Sellers’ liability shall be limited, at Sellers’ option, to the delivery of replacement material provided that Buyers shall first have re-delivered the Goods to Sellers or to the granting of an appropriate credit or allowance against the Contract Price. Any other rights or claims of Buyers and in particular but without limitation any right to claim indirect or consequential damages are expressly excluded.

3.7 It is the Buyers’ responsibility at and from the time of delivery to him to ensure that the Goods are in all respects properly marked and packaged, and Sellers will not be liable in respect of improper marking, packaging, loading, storage or other preparation for transport.

3.8 Save where a contrary intention is expressed in the Special Conditions, weight condition and quality shall be final upon delivery according to the certificate of Sellers or their suppliers or their superintendents. The provision of such certificate shall not relieve the buyers from any consequences of their failure where a reasonable opportunity has been afforded them to check the goods and ensure their suitability for the purpose for which they are intended and/or whether the goods are satisfactory.

Section 4

4.1 If the Goods are to be delivered by instalments, each instalment shall be considered a separate contract and, subject to Sellers’ rights under (4.3) below, any failure in respect of delivery, quantity, condition or specification of any one instalment shall not affect the Contract as to other instalments to be delivered.

4.2 Delivery under this Contract shall be subject to, and Sellers shall be in no way be liable for any loss or damage of any kind caused by our resulting from inability to deliver or delay in delivery arising from any circumstances beyond their control including in particular, but without limitation war whether declared or not; warlike hostilities or armed conflict whether internal or international; insurrection; riot; civil commotion; rebellion; crop failure; flood; storm; tidal wave; peril of the sea; earthquake; fire; ice; lightening; or any other similar or dissimilar natural phenomenon or Act of God; explosion; strike; lock-out; labour dispute; embargo; blockade; breakdown or prevention of working of machinery; unavailability, loss, delay, detention or interruption of a carrying vessel or any other similar or dissimilar means of transportation; delay or mishap in loading or discharging material; requirements or regulations of any governmental or quasi-governmental or other public or statutory authority or any state, city, municipal or local authority or political sub-division; prohibition of export or import; non-availability of export or import licence; cancellation or suspension or other non-performance except if caused by Sellers’ unjustifiable act or omission of any contract on which Sellers depend for fulfilment of this Contract; accident; or any other similar or dissimilar circumstance including any circumstance affecting, or affecting the availability of, any raw material required for production of the goods whatsoever, wheresoever and howsoever preventing or hindering the delivery of the Good.

4.3 In the event of Sellers’ inability to effect delivery by reason of any of the above-mentioned circumstances, Sellers’ shall be at liberty by notice in writing to Buyers to postpone delivery or, at Sellers’ option, to terminate this Contract in whole or as to any unfulfilled part thereof, in which event Sellers liability shall absolutely cease and determine. Any delivery thus postponed shall, if Sellers so require, be accepted by Buyers at the same rate of delivery and upon the same terms and conditions as are specified in this Contract, such resumption of delivery to commence within a reasonable time after the service of notice in writing by Sellers to Buyers.

4.4 If by reason of any of the above-mentioned circumstances, Sellers do not have or are enable to obtain sufficient available supplies of the Goods to enable them to fulfil all their contracts, Sellers may allocate their available supplies amongst any or all purchases on such basis as Sellers deem fair and practical, without any liability for failure to comply with the provisions of this Contract.

4.5 Any duly authenticated certificate issued by any recognised Chamber of Commerce, trade association, government or other body with a knowledge of the relevant facts in any country in which the above-mentioned circumstances occurred shall be accepted by Buyers as conclusive proof of the occurrence and duration of such circumstances as shall any published report of the circumstances

Section 5

5.1 The Goods shall remain the sole and absolute property of the Seller as legal and equitable owner until such time as the Buyer shall have paid in full to the Seller the price in respect thereof and of all other goods and services supplied to the Buyer under any other contract with the Seller or otherwise. The Buyer agrees that until such time as property in the Goods shall pass to him as aforesaid:

5.1.1 He acknowledges that he is in possession of the Goods solely as fiduciary and bailee for the Seller; and

5.1.2 He will store the same in a manner which makes them readily identifiable as the Goods of the Seller; and

5.1.3 The Seller may recover or resell the Goods or any part thereof and for this purpose may at all reasonable times enter upon any premises where they are stored or where they are reasonably thought to be stored and the Buyer shall allow or procure access thereto for the Seller.

5.2 The Buyer is licensed by the Seller in his capacity as fiduciary to resell the Goods by way of bona fide sale at full market value before the Seller has received payment in full in respect thereof subject to the express conditions that: -

5.2.1 Upon resale by the Buyer the price of the goods (invoice) shall become payable to the Seller Thirty (30) days net monthly plus three (3) working days for bank clearance.

5.2.2 The entire proceeds of sale are held in trust for the Seller and shall not be mingled with other monies or paid into an overdrawn account but are paid into a separate bank account and shall be at all times identifiable as the Sellers’ monies and it is agreed that if the Buyer shall be in breech of this provision the Seller shall be entitled to trace the proceeds of sale into the Buyer’s bank account or otherwise.

5.3 Without prejudice to the generality of Clauses 5.1 and 5.2 the Buyers’ rights to possession of the Goods and to resell the Goods shall cease if payment in respect thereof is overdue or if the Buyer becomes insolvent or, being an individual commits any act of bankruptcy or, being a company, pass a resolution for winding up, suffer the appointment of a receiver or administrator or make any arrangement with or compound with its creditors.

5.4 If the Goods are admixed with goods the property of the Buyer or are processed with or incorporated therein such that it is not possible to extract or dismount the Goods from the resulting product of such admixture, process or incorporation, the said resulting product shall become and/or shall be deemed to be the sole and exclusive property of the Seller. If the Goods are admixed with goods the property of any person other than the Buyer the said resulting product shall become or be deemed to be owned in common with that other person.

5.5 If the Seller repossesses the Goods under Clause 5.1 or 5.3 including any admixed goods as referred to in Clause 5.4, and resells the same, it shall account to the Buyer or any relevant third party for any proceeds of sale in excess of the aggregate of amounts owed by the buyer to the Seller under this contract any other contract or otherwise which aggregate shall include the costs incurred in repossessing and reselling the Goods including legal costs, incurred in connection therewith.

Section 6

6.1 Sellers may, upon the request and on behalf of Buyers and at the expense of Buyers, make packaging, shipping, transport, discharging, unloading, storing, insurance, and/or other arrangements in respect of all or any of the Goods, provided always that any such arrangements are made at the entire risk and responsibility of Buyers, without any liability on the part of Sellers, and without prejudice to the Sellers’ rights under this Contract.

6.2 Notwithstanding any provision of law or regulation to the contrary it shall be the responsibility of the buyers to dispose of all packaging materials of all descriptions in accordance with the provisions of all laws and regulations of the place at which the goods are delivered tot he buyers and the buyers shall hold harmless and indemnify the sellers against any liability which may arise from their failure or refusal to effect such disposal.

Section 7

7.1 Buyers shall effect payment strictly in accordance with the payment terms set forth in the Special Conditions and shall not be entitled in any way to withhold, retain or exercise any right of set-off whatsoever or howsoever in respect of the Contract Price or any part thereof.

7.2 In the event of failure by Buyers to pay any sum due on the due date for the payment thereof, Buyers shall become liable to pay to Sellers, in addition to such unpaid sum, interest thereon from the due date for payment until the actual date of payment, calculated on a day by day basis as well after as before judgement, at a rate equivalent to four per cent (4%) per annum above NatWest PLC Base Lending Rate from time to time in force for the currency of the contract.

7.3 If Buyers shall fail to make payment on the due date of any amount due from them to Sellers whether such amount be due pursuant to this Contract or in respect of any other dealing between Sellers and Buyers, or if Buyers, being constituted in England and Wales, shall become insolvent or commit any act of bankruptcy or have an administrative receiver appointed over all or any of their assets or suffer an administration order to be made against them or take or suffer any action preparatory to winding-up including, but without limitation, the presentation of a winding-up petition, the passing of are solution for voluntary winding-up or the convening of a meeting of creditors or if Buyers, being constituted in any other country, take or suffer any corresponding action to any such other country, Sellers may at their option exercise any or all of the following remedies without prejudice to any other remedies they may have:

(i) require payment in cash to discharge any existing liability and to cover before delivery all further material to be delivered under this Contract: and/or
(ii) terminate this Contract in which event Sellers shall be entitled to sell the Goods to any third party and to claim from Buyers the difference between the price so realised and the Contract Price and Sellers may by their servants or agents enter upon, Buyers’ premises for any purposes in connection with such sale and in particular, but without limitation, to retake possession of all, or any of the Goods; and /or,
(iii) apply any sum owing by Sellers to Buyers in or towards satisfaction of all or any of Buyers’ obligations to Sellers, whether actual or contingent.

Section 8

Seller shall in no way be liable for:

8.1 Labour costs or other expenditure in and about the processing of the Goods or any consequential loss or damage whatsoever including but without prejudice to the generality of the foregoing any claims which shall be made against Buyers by any third party to whom the goods shall be resold by Buyers or by whom the Goods may otherwise be handled, processed or used.

8.2 The consequences of dealing with the Goods in any way not specifically recommended by Sellers alleged loss of profit.

Section 9

Whether or not Buyers shall confirm in writing their acceptance of Sellers’ General and Special Conditions, Buyers’ conduct in performance, part performance, or purported performance of this Contract shall constitute their unconditional acceptance of Sellers’ General and Special Conditions for this and future business.

Section 10

These goods are not intended for sale nor sold as being suitable for applications other than specified in product data sheets, as to which no warranty is given or to be implied as to the percentage of these Goods to be used in any such operations which are at Buyers’ sole risk. The warranty applies to goods sold for specific and suitable applications as specified in product data sheets.

Section 11

POLYBRITE (UK) LIMITED or any associated company within the meaning of the Companies Act 1985 is stated to be acting as agents, the performance of any service which may extend beyond the usual scope of an agent’s services shall in no way nullify or affect the company’s status as an agent, as any such service is being performed for and on behalf of the respective principals to the contract.

Section 12

This Contract shall be construed in accordance with and governed by the laws of England. Any dispute arising under this Contract shall, at Sellers’ option at a time after the dispute has arisen, be determined by the High Court of Justice in England or submitted to arbitration. If Sellers opt for arbitration, they may opt for arbitration in accordance with the Rules of Arbitration of (A) GAFTA (B) FOSFA, (C) IGPA, or (D) any other trade association, or opt for arbitration in accordance with none of these rules. The decision as to whether (A), (B), (C), (D), or none of them, are to apply, is to be made by the Sellers at a time after the dispute has arisen, should be Sellers have opted for arbitration.

Section 13

Buyers undertake to supply in accordance with Sellers’ requirements, all necessary End Use Certificates, and/or Delivery Verification Certificate, all of which shall be valid and in full force and effect. Buyers represent and warrant that they have obtained all necessary permissions and complied with all applicable regulations and formalities before entering into this Contract and will take all necessary actions to comply with Value Added (or similar or equivalent) Tax regulations relating to the goods. Buyers undertake to indemnify and hold Sellers harmless from and against all claims, demands, actions, proceedings, liabilities, losses, costs, charges, and expenses which may be made or brought against Sellers or which Sellers may suffer or incur in consequence or Buyers’ failure so to do.

Section 14

If Buyers shall fail to take delivery of any of the Goods in accordance with this Contract, Seller shall be entitled to resell all or any of such Goods and to claim from Buyer the difference between the price so realised and the Contract Price, together with interest thereon from the due date of payment by Buyer.

Section 15

Sellers shall in no way be liable for damage to, mis-delivery of, or delay in delivery of the Goods unless Sellers and the carriers are notified in writing otherwise than upon any of the carriers documents, such notice to be received by Seller within three (3) days from date of delivery to Buyer and unless a detailed claim has been made in writing to Seller and the carriers within seven days after the termination of transit of the consignment or that part of the consignment of which the claim arises.

Section 16

Risk in the Goods shall pass to the Buyer on delivery. If delivery is delayed through the neglect or default of the Buyer for more than seven days of any date agreed for delivery or, if none shall have been agreed within seven days of receipt by the Buyer of notice that the Goods are ready for delivery, risk in the Goods shall pass to the Buyer on expiry of the relevant period of seven days as aforesaid and the Seller shall be entitled to charge the Buyer with the cost of storing the Goods and insuring them against loss or damage.

Date Revised: 01 February 2008