Terms and Conditions - Sale

1. Definition

“Seller” means SURFACHEM LTD

“Buyer” means the person/ firm/ company purchasing Goods from the Seller.

“Goods” means products or services which Seller agrees to supply to Buyer.

2. General

(a) These conditions are the only conditions of the contract under which the Seller supplies Goods. All other conditions which the Buyer attempts or purports to impose shall be excluded from any contract between the parties.

(b) No order for Goods will become legally binding until the Seller has notified the Buyer in writing of its acceptance of the order or by its actions the Seller has commenced performance of the Buyer’s order. Each order is subject only to these conditions to the exclusion of all other conditions including but not limited to any standard purchase terms of the Buyer. When accepted, the resulting contract shall be governed by English law. No variation to the conditions shall be binding unless agreed in writing by the Seller.

(c) Save in the case of any fraudulent misrepresentation the Buyer shall be deemed as not having relied on any representations in respect of the Goods unless made by the Seller in writing with specific reference to this clause. In entering the contract the Buyer acknowledges that it does not rely on and waives any claim for any breach of any representations (other than any fraudulent misrepresentations) which are not so confirmed.

(d) Waiver of all or any of these conditions by the Seller shall not affect or prejudice its rights and remedies in respect of any subsequent breach, non-performance or non- observance.

(e) The contract is personal to the Buyer and is not capable of being assigned without Seller’s prior written consent.

(f) Insofar as any provision of these conditions or any part thereof shall be found or deemed by any court or competent authority to be void, voidable, invalid, ineffective or unenforceable, such defect shall not affect the remainder of the conditions which shall be construed as if the defective part or parts had been excluded at the time when the contract was entered into.

(g) The Seller reserves the right to make any reasonable changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to Seller’s specification, which do not materially affect their quality or performance.

(h) No order which has been accepted by the Seller may be cancelled by Buyer except with Seller’s prior written agreement.

(i) The Seller accepts no responsibility for markings / codes put onto the goods at the Buyers request. The Buyer must always check the manufacturer’s labelling to verify the contents prior to use.

(j) The Seller shall have absolute discretion as to whether it shall accept the return of any Goods and shall not in any circumstances accept the return of any opened or part used Goods.

(k) The Company reserves the right to make scheduled deliveries each of a part only of the overall amount and value of Goods ordered by the buyer. Where any such scheduled delivery is made the Goods comprised within each delivery shall be deemed to have been sold and delivered under a separate contract for the sale of the Goods the subject of such delivery and will be invoiced separately. The Buyer will pay for the Goods delivered in each scheduled delivery without set off, counter claim or deduction in respect of any previous or future scheduled delivery or other goods ordered from the Seller.

3. Quantities

The Seller has the right to supply 10% more or less than the exact quantity of Goods ordered by Buyer and such excess or shortage will be charged or allowed for at the contract price.

4. Price

(a) Subject to Condition 4(b) below, the price in respect of each order shall be that notified by the Seller to the Buyer in writing (including but not limited to facsimile or email). Where no such notification has been given then the price will be that quoted in the Seller’s pricebook.

(b) Where the Goods are supplied to the Buyer outside of the United Kingdom, then in the event of any increase in the cost to the Seller of raw materials, labour, overheads, any increase in taxes or duties or any variation of exchange rates the Seller may increase the price payable. Unless, however, within 14 days after notification to the Buyer of an alteration, the Seller and the Buyer have agreed on an adjustment in price, or the Seller has re-established the last prevailing price, the Buyer may within 7 further days cancel the order by notice in writing to the Seller.

5. Payment


(a) Unless otherwise agreed in writing payment for Goods supplied is due in full by the 20th day of the month following the date of the Seller’s invoice. In no circumstance shall the Buyer be entitled to make any deduction or withhold payment for any reason whatsoever unless authorised in writing by the Seller.

(b) If payment becomes overdue, the Seller may, without prejudice to other rights and remedies, suspend or cancel the fulfilment of any order placed by the Buyer.

(c) Without prejudice to any other rights of the Seller, should the Buyer fail to make any payment by the due date then the Buyer shall pay interest on said payment from the date on which it was due to that on which payment was made (whether before or after judgement) at a rate of 8% above the Bank of England base rate.

(d) If the Buyer defaults on any payment due in respect of any specific order then payment for all goods delivered but not yet due for payment shall be deemed to become due and payable on the date of default.

6. Risk

Risk of damage in or loss to, the Goods shall pass to the Buyer either :-

(i) at the time when the Goods are collected from the Seller’s premises by the Buyer or a third party acting on behalf of Buyer. OR

(ii) at the time when the Goods are delivered by the Seller’s agent to a location nominated by the Buyer.

In either case the consignment shall be deemed to have been in complete and in a satisfactory condition unless:

(a) Notification of damage, non-delivery or partial loss of any separate part of the consignment is received by the carrier and Seller in writing, other than on the delivery note, within 7 days of the date of delivery, or :-

(b) Notification of non-delivery of the entire consignment is received in writing by Seller within 7 days of the sending to Buyer of Seller’s invoice for the Goods.

Subject to the discovery of latent defects in the Goods which could not have reasonably been discovered upon inspection within 7 days of delivery, unless this condition 6 is strictly observed, the Seller shall be under no liability whatsoever in respect of loss or damage in transit or for non-delivery of the whole or any part of the consignment.

7. Retention of Title


(a) The Goods shall be at the Buyer’s risk from delivery and the Buyer shall insure the Goods accordingly.

(b) Property in the Goods shall remain with the Seller until:

(i) payment in full has been made to the Seller for all monies owing in respect of all Goods delivered under this contract; and

(ii) no other sums whatever shall be due from the Buyer to the Seller.

(c) Until property in the Goods passes to the Buyer it shall hold the Goods (at no cost to the Seller) in a fiduciary capacity for the Seller in a manner which enables them to be identified as the goods of the Seller and the Buyer shall immediately return the Goods to the Seller should it so request.

(d) If the Buyer shall, before the property in the Goods has passed, use the Goods in the manufacture or production of items or materials or if the Goods are mixed with other goods, the items or materials or mixtures so produced (the “New Goods”) shall become the property of the Seller. The property in the New Goods shall pass to the Seller at the moment of manufacture or mixing but the New Goods shall be at the Buyer’s risk and the Buyer should be insured accordingly. Until the payment of all monies owing by the Buyer to the Seller, the Buyer shall hold the New Goods (at no cost to the Seller) in a fiduciary capacity for the Seller in a manner which enables them to be identified as the goods of the Seller and the Buyer shall immediately deliver up the New Goods to the Seller should it so request.

(e) The Buyer grants the Seller an irrevocable licence to enter at any time any vehicle or premises owned or occupied by the Buyer or in its possession for the purpose of repossessing and removing any Goods and New Goods which belong to the Seller. The Seller shall not be responsible for and the Buyer will indemnify the Seller against any liability in respect of damage caused in such repossession and removal being damage it was not reasonable practicable to avoid.

(f) Notwithstanding clauses (c) and (d) the Buyer shall be entitled to offer the Goods and the New Goods for sale at the best obtainable price in the ordinary course of its business. The Seller shall be legally and beneficially entitled to the proceeds of sales which shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.

8. Delivery and Force Majeure

(a) Any date given for delivering the Goods is an estimate only which the Seller shall use all reasonable endeavours to meet. Time for delivery is not of the essence and shall not be made of the essence by notice.

(b) The Seller shall not be liable to the Buyer nor be deemed to be in breach of contract by reason of any delay in, or any failure to deliver any Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. The following shall be regarded as causes beyond the Seller’s reasonable control:

(i) act of God, explosion, flood, tempest, fire, earthquake, blizzard or accident;

(ii) war, sabotage, terrorism, banditry, insurrection, civil disturbance or act of government;

(iii) logistical, supply and transport difficulties that are beyond the Seller’s reasonable control, including but not limited to difficulties caused by trade disputes, strikes, unexpected shortages, imposition of trade sanctions..

(c) In the circumstances outlined in Condition 8 (b) above the Seller shall notify the Buyer as soon as reasonably practicable of the delay and in the event that the delay lasts for more than 60 days the buyer may cancel the order and source alternative supplies of the Goods from a third party

9. Goods

a) The Buyer is responsible for checking any specification is accurate and adequate for the provision of Goods for its desired purposes and the Seller shall have no liability for errors in any specification or details.

(b) Unless otherwise agreed, the Seller warrants that on delivery the Goods shall conform in all material respects with their description in the published specifications included in the Seller’s literature at the time of delivery, subject to clause 2(g).

(c) Subject to clause 9(d), if:

(i) the Buyer gives notice in writing to the Seller within [a reasonable time of discovery] that some or all of the Goods do not comply with the warranty set out in clause 9(b) above;

(ii) the Seller is given a reasonable opportunity of examining such Goods; and (iii) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost, the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

(c) The Seller shall not be liable for Goods’ failure to comply with the warranty set out in clause 9(b) in any of the following events:

(i) the Buyer makes any further use of such Goods after giving notice in accordance with clause 9(c);

(ii) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(iii) the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;

(iv) the Buyer alters or repairs such Goods without the written consent of the Seller;

(v) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(vi) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

(d) Except as provided in this clause 9, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 9(b) and the repair or replacement of the Goods or refund of the price by the Seller shall be the Buyer’s sole remedy in this regard.

(e) The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

(f) These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.

10. Seller’s Liability


(a) This Clause 10 sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:

(i) any breach of these Conditions; and

(ii) any representation, statement or tortious act or omission including negligence arising under or in connection with a contract for the Goods.

(b) Neither party excludes or limits liability to the other party for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation nor where liability cannot be excluded or limited as a matter of law (including but not limited to breach of any obligations implied by Section 12 Sale of Goods Act 1979 (as amended) or Section 2 Supply of Goods and Services Act 1982).

(c) Subject to the provisions of condition 10(b) above, all representations, warranties, and conditions whether implied by statute or otherwise are excluded from this Agreement to the fullest extent permitted by law.


(d) Subject to conditions 10(c) and 10(d) above the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the greater of the price of the Goods under the order which has given rise to the claim or such sum as the Seller can reasonably recover from its insurers under any relevant policy of insurance that it has in force; and the Seller shall not be liable to the Buyer for:

(i) any indirect or consequential loss or damage; or

(ii) any direct loss of profit, loss of business, depletion of good-will or otherwise, or

(iii) any costs, (including but not limited to legal costs, expenses or other claims for consequential compensation

whatsoever and howsoever caused which arises out of or in connection with the Contract.

(e) The Seller does not give any warranties that the Goods does not infringe any third party’s intellectual property or industrial rights and shall not be under any liability to the Buyer in respect thereof.

11. Default

The Seller may, without prejudice to any of its other rights, stop any Goods in transit and/or suspend further deliveries of Goods or by notice in writing to the Buyer, and terminate any order or contract for Goods if:

(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or

(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against him/it, or fails to observe/perform any of its obligations under the contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or

(c) the Buyer encumbers or in any way charges any of the Goods; or

(d) the Buyer takes or suffers analogous action or proceedings or becomes insolvent under foreign law; or

(e) the Buyer commits any material breach of Contract; or

(f) the Buyer fails to pay any sum due on the due date or in any other manner..

(g) Any such termination is without prejudice to the Seller’s rights under condition 7 relating to retention of title.

12. Dispute Resolution

(a) In the event of a dispute relating to this contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation in accordance with the LCIA Mediation Rules, which are deemed to be incorporated by reference into this clause.

(b) If the dispute is not settled by mediation within 14 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.

(c) English will be used in the mediation and in the arbitration of this contract.

(d) The governing law of the contract shall be the law of England and Wales.

(e) In any arbitration commenced pursuant to this clause,

(i) the number of arbitrators shall be one; and

(ii) the seat, or legal place, of arbitration, shall be London, England.