These terms and conditions are not intended to and will not apply to contracts in which the Customer is dealing as a consumer in so far as they would be void under the Unfair Contract Terms Act 1977. The statutory rights of parties dealing as consumers are preserved throughout.
- 1. CONDITIONS OF CONTRACT
In these Conditions of Sale:
means Applied Minerals Limited or its successors, assignees, subcontractors and agents;
means the contract for sale or supply of the Goods by the Company to the Customer, which Contract shall be subject in all respects to the terms of these Conditions;;
means all of these terms and conditions as set out in this document;
means any person or persons, firm or firms, company or companies, authority or authorities, who shall Order or buy the Goods and shall include his or their successor, executors and personal representatives;
means any Goods forming the subject of the Contract including parts, ingredients and components of all materials incorporated into them and all replacements and renewals thereof and all accessories and additions thereto whether added or made before or after the date of the Order;
means the order made by the Customer to the Company for the purchase of the Goods and which order shall constitute a contractual offer capable of acceptance by the Company in accordance with these Conditions and the word ‘Ordered’ shall be construed accordingly;
means any weekday other than a public holiday in England & Wales.
- 2. CONTRACT
- 2.1 These Conditions shall apply to each agreement for the sale and supply of Goods by the Company to the Customer (each sale being a “Contract”).
- 2.2 No quotation or tender by the Company shall constitute an offer. An Order shall constitute a contractual offer which is capable of acceptance by the Company. No Order shall be binding on the Company or deemed to have been accepted by the Company unless and until the Company’s own written acknowledgement and acceptance of such Order is issued to the Customer by the Company.
- 2.3 The Company shall not be bound by any terms and conditions set out in a Customer’s Order or in any other documentation and these conditions shall supersede and prevail over any other terms referred to by the Customer. No previous correspondence, writings, emails, faxes or verbal communications between the Customer and the Company regarding the Goods shall form any part of or be incorporated either into the Order or the Contract.
- 2.4 The Company reserves the right to withdraw or cancel any quotation or tender within 30 days from the date of the tender or quotation without notice at any time prior to its acceptance of any offer made by the Customer to purchase Goods.
- 2.5 No variation of these Conditions shall be effective unless expressly agreed in writing by a Director of the Company.
- 3. PRICE
- 3.1 The prices set out in any quotation or tender issued by the Company are based upon circumstances prevailing at the date of such quotation or tender. The price payable by the Customer in respect of the Goods shall be that prevailing at the date of delivery and unless otherwise agreed in writing all payments shall be made within 30 days from the date of invoice.
- 3.2 The Company specifically reserves the right to vary the prices in the event of the happening of any of the events set out at sub-clauses 3.2.1 to 3.2.3 below provided that any such increase shall be communicated to the Customer prior to delivery of the Goods:
- 3.2.1 any increase attributable to fluctuations in currency exchange rates between the date of quotation and the date of delivery;
- 3.2.2 any increase in the costs of rail transport, of road transport, or of air or sea freight duty, excise duty, VAT, import duty, insurance costs and other charges relating to the delivery of the Goods to the Company by its suppliers or to the customer by the Company and/or its Agents;
- 3.2.3 any variation by the customer in specification quantities or other instructions and any suspension of work following from the customer’s instructions or through any default of the customer or failure to give timeous instructions.
- 3.3 Should performance of the Contract be suspended for a period of not less than 30 days at the request of the Customer or delayed because of any default of the Customer, the Company shall be entitled to payment for work already carried out and materials Ordered under the Contract and shall be entitled to cease work on the Contract and on any other Contract with the Customer until such payment is made in cleared funds by the Customer.
- 3.4 All quotations and tenders are based on the Customer’s instructions and specifications as given to the Company and the Customer shall be liable to pay for all of the Goods which are manufactured, adapted or prepared for the use of the Customer under a Contract or which had been Ordered by the Company in accordance with such specifications and instructions notwithstanding that the Customer has provided erroneous information within those specifications and instructions.
- 4. DELIVERY
4.1 Delivery will be made to the Customer’s address as notified to the Company, or, (if so agreed) delivery will take place on notification by the Company that the Goods are available for collection. Delivery will be deemed to take place on receipt of the Goods at the Customer’s address or immediately following notification, as the case may be.
4.2 Dates for delivery mentioned in any quotation, tender, Order or other document are approximate only and while the Company will use its reasonable endeavours to effect delivery by any date indicated, such dates are not of the essence to the Contract.
4.3 When the Customer signs the Proof of Delivery upon receiving the Goods, the Customer confirms that the Goods are received in full and in satisfactory condition as per the delivery note. Any damage or shortages should be noted clearly on the Proof of Delivery document and communicated to the Company in writing within 3 Working Days of delivery date. The Company will acknowledge any such notifications and log the details. However in the case of latent defects in the Goods, any such defects must be reported to the Company as soon is as possible after such defects become apparent, following which the Company will log the details. No credit note will be given without this log reference number.
4.4 Late performance of a Contract or part of a Contract by up to 14 days does not entitle the Customer inter alia to reject the Goods, terminate the Contract (or any other contract with the Company), withhold payment of any part of the contractual price or claim damages (whether direct or consequential in nature).
4.5 Where damage to or loss of the Goods occurs prior to delivery the Company undertakes to replace or (at its discretion) to repair free of charge any Goods so damaged or lost. The foregoing undertaking of the Company is conditional upon the Customer giving written notice (together with reasonable particulars thereof) of such damage or loss to the Company within 3 Working Days of receipt of the Goods or, in the case of total loss, within 10 Working Days of receipt of the Company’s invoice or the carrier’s delivery advice or other notification.
4.6 Unless the Company has arranged for and is responsible for delivery and save as expressly provided in clause 4.5 the Company shall have no liability whatsoever for or in connection with any damage to or loss of the Goods in transit to the contracted place of delivery.
4.7 If the Customer refuses to take delivery of the Goods or refuses or fails to collect the Goods (as may have been agreed), the Company may charge for the costs incurred in recovering the Goods and / or the costs of storage of the Goods. The costs of recovery and storage shall be recoverable from the Customer as part of the price of the Goods and the Goods shall not be released to the Customer until the price, inclusive of costs of storage and any other connected costs are paid by the Customer to the Company in cleared funds.
4.8 Any failure by the Customer to take delivery of the Goods or any other act or omission of the Customer by which the Company is prevented from completing performance of the Contract shall not relieve the Customer of his obligation to pay the Contract price.
4.9 Where delivery is at the Customer’s request suspended or delayed or, (where delivery is to be by collection by the Customer) the Company gives notification of readiness to deliver or availability of the Goods for collection, the Company may treat the Contract as fulfilled by such notification. Where the Company treats the Contract as fulfilled under this clause above then from the date of sending notification of storage to the Customer, the risk in the Goods and liability for loss or damage to the Goods is that of the Customer.
4.10 While the Company shall use its reasonable endeavours to supply the precise amount of any Goods Ordered the Customer hereby agrees to accept variations in amount of 10% below or above the amount Ordered, without claim against the Company.
- 5. PAYMENT
- 5.1 Payment is due on 30th day of the month following the month of invoice which may be submitted at or any time subsequent to delivery.
- 5.2 If the Customer fails to pay any instalment on the date it becomes payable, the whole of the balance of the price then outstanding shall become immediately payable.
- 5.3 In respect of any failure by the Customer to make any payment under a Contract when due, the Company shall have the right to charge interest at the rate of 8% per annum to accrue daily on any outstanding amounts together with all reasonable legal costs associated with the collection of the sums owed.
- 5.4 Payment by credit card at the time of Order will attract a 3% charge of the net Goods amount. Payment using credit card to settle an account will incur a 2.5% charge of gross amount due, subject to a minimum charge of Â£6 for payments of less than Â£200. There is no charge for payment by debit card, BACS transfer or cheque.
- 6. PASSING OF OWNERSHIP AND RISK
- 6.1 Risk in the Goods shall pass to the Customer when the Goods are delivered to the Customer in accordance with clause 4.1 above.
- 6.2 Notwithstanding risk in the Goods passing in accordance with clause 6.1 legal title in the Goods shall not pass to the Customer until whichever shall be the first to occur of the following:
- 6.2.1 payment being received by the Company for the Goods in cleared funds and no other amounts then being outstanding from the Customer to the Company in respect of the Goods or in respect of any other Goods; or
- 6.2.2 the Company waiving its right of ownership in respect of any specified Goods, title to which shall then forthwith vest in the Customer.
- 6.3 Where legal title has not passed to the Customer and without prejudice to any of its other rights, the Company shall have the right to recover or resell the Goods or any of them and for that purpose at any time without notice may enter upon any premises owned by the Customer, or occupied by or under the control of the Customer and in which the Goods or any of them are stored or kept or are reasonably believed by the Company to be stored or kept.
- 6.4 Until payment due under all Contracts between the Customer and the Company has been made in full in cleared funds the Customer shall hold the Goods as mere bailee and shall store them in such a way that they are identifiable as the property of the Company and separate from all other Goods in the Customer’s possession.
- 7. PRODUCT TRACEABILITY AND LIABILITY
- 7.1 The Company shall maintain a documented product traceability procedure, which shall be available for inspection by the Customer from time to time.
- 7.2 Notwithstanding any purported acceptance of Goods the Company indemnifies the Customer from and against all liability for the death or personal injury caused to any person (including settlements entered into in good faith, damages, costs and reasonable expenses) arising out of any product liability claims made against the Customer and which liability was caused by any defect in the Goods (including the raw or base materials used in any manufacturing process).
- 7.3 It is agreed that any government order or recall or injunction against distribution and / or sale of any Goods shall as between the parties hereto be deemed conclusive proof of a defect in the relevant Goods hereunder.
- 7.4 The Company does not warrant or guarantee that the Goods will be suitable for any particular purpose and Goods should only be used in accordance with any instructions for use. The Company shall not be liable for the consequences of any loss or damage caused by use of Goods:
- a) for purposes other than for which they were intended by the manufacturer; or
- b) in circumstances other than for which they were intended by the manufacturer; or
- c) which are not fitted in accordance with instructions, located or fitted in any environment unsuitable for use of the Goods.
- 7.5 The Company indemnifies the Customer from and against all liability of the Customer arising out of any government order or recall or injunction against distribution and / or sale of any Goods which liability was caused by any defect in the Goods (including in the raw or base materials used in any manufacturing process) save that the maximum liability of the Company to the Customer in such circumstances (to include all costs, penalties, interest and properly incurred expense) shall be limited to no more than [Â£5,000,000.00 per claim].
- 8. CONSEQUENTIAL LOSS
- 8.1 Save as expressly provided in these Conditions, neither party shall be liable to the other for any consequential loss or indirect loss suffered whether the same arises from breach of a duty, contract or tort, or in any other way (including loss arising from the negligence of a party). Non-exhaustive illustrations of consequential and indirect loss are loss of profit, loss of contracts, damage to the property of a party or anyone else.
- 8.2 In respect of any claim whatsoever made by the Customer against the Company in respect of the Goods, the liability of the Company shall be limited to the Contract price of the Goods save as expressly provided in these Conditions.
- 9. EXCLUSION AND LIABILITY
- 9.1 Save insofar as the Company has expressly undertaken liability under these Conditions contained herein, all express and implied warranties or conditions, statutory or otherwise as to the quality or fitness for any specific purpose of materials used, Goods supplied, or any other matters are expressly excluded in so far as legally permissible.
- 9.2 It is expressly agreed that the Company shall be under no liability whatsoever to indemnify the Customer against loss or damage consequential or otherwise of whatsoever nature and howsoever arising for which the Customer may be liable to third parties as a direct or indirect result of any act or omission by the Company save as expressly provided in these Conditions.
- 9.3 Where Goods are defective for any reason, including through negligence, the Company’s liability (if any) shall be limited to rectifying such defect or in the absolute discretion of the Company refunding the Customer for the difference between the value of the Goods Ordered and the value of those delivered.
- 10. SPECIFICATIONS
- 10.1 Unless otherwise expressly stated, the Company does not guarantee that the illustrations, weights and dimensions and other specifications in the Company’s catalogues or in any relevant drawings or documents will in all cases be identical with the Goods. Certain specifications of the Goods may vary from time to time without affecting their performance. The Company will use reasonable endeavours to notify the Customer of any material alterations to any specifications relating to the Goods but the Company reserves the right to any time without notice make alterations to the Goods.
- 10.2 If the Company expressly guarantees the accuracy of any performance figures or statements then in the event of the Goods delivered failing to achieve those performance figures or comply with statements the Company shall be entitled for a reasonable period to enable it to bring the Goods up to the performance required and the time for delivery shall be deemed to be extended for such reasonable period.
- 11. SUBCONTRACTORS
The Company reserves the right at its sole discretion to sub-contract the whole or any part of the work involved in the supply or delivery of the Goods or of any part thereof.
- 12. INSOLVENCY/DEFAULT
If the Customer:
- 12.1 being a Company, has a petition presented for its winding up, passes a resolution for voluntary winding-up (other than for the purpose of a bona fide amalgamation or reconstruction), compounds with its creditors or has a Receiver, Administrative Receiver or Administrator appointed over all or any of its assets; or
- 12.2 being an individual, becomes bankrupt or insolvent, or enters into any arrangement with his Creditors, or commits a serious breach of a Contract (and in the case of such a breach being remediable, fails to remedy it within seven days after receiving notice to do so),
then the price of all Goods delivered and all work in progress shall immediately become due and payable to the Company in cleared funds and in addition the Company shall have the right in its absolute discretion to cancel or suspend forthwith any Contract subsisting with the Customer without prejudice to the Company’s rights to recover any loss or damage sustained.
- 13. SUBCLAUSES
Each of the subclauses in the Contract is to be treated as separate and independent and unless expressly stated no clause or clauses shall be taken to limit any other or others.
- 14. FORCE MAJEURE
- 14.1 A party shall not be liable for any failure to deliver the Goods arising from circumstances outside of that party’s control.
- 14.2 Non-Exhaustive illustrations of circumstances referred to in 14.1 above are Act of God, civil commotion, war, riot, explosion, abnormal weather conditions, fire, flood, strike, lock-outs, Government action or regulations (UK or otherwise), delay by accidents, action or inaction by the Company’s suppliers and shortage of materials labour or manufacturing facilities or any other cause of any description not within the absolute control of a party preventing, hindering or delaying the manufacture or delivery of any Goods specified in the Contract.
- 14.3 If the delivery of the Goods is prevented or delayed because of any of the above circumstances the party suffering the circumstances shall notify the other of that fact in writing as soon as possible prior to the Contracted delivery date.
- 14.4 If the circumstances preventing delivery are still continuing three months from and including the date of delivery and written notice of prevention or delay has been given then either party may give written notice to the other cancelling the Contract.
- 15. FURTHER ASSURANCE
The Customer shall from time to time upon the request of the Company execute any additional documents and do any other acts or things which may reasonably be required to give effect to this Contract.
- 16. NOTICES
Any notice to be given under the Contract shall be in writing and sent by first class pre-paid letter post to the receiving party at its business address as last notified in writing to the other party and shall be deemed to have been given to the other party on the day following that on which the notice was posted.
- 17. LEGAL CONSTRUCTION AND ARBITRATION
17.1 The construction, validity and performance of any Contract to which these Conditions are subject shall be governed by the Laws of England and all disputes which may arise out of or in connection with any such Contract or the meaning or effect of the terms hereof shall be settled by arbitration in accordance with the provisions of the Arbitration Act of 19 or any statutory modification thereof for the time being in force.
17.2 No variation of these Conditions or of the terms of any Order accepted by the Company shall be binding upon the Company unless the same shall be in writing and signed by a Director of the Company.