Terms and Conditions of Sale
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business and includes any Christmas/New Year shut-down period notified in writing by Supplier. Business Hours: the period from 9.00 am to 5.00 pm on any Business Day. Commencement Date: has the meaning given in clause 2.2. Conditions: these terms and conditions as amended from time to time in accordance with clause 17.8. Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions. Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly. Customer: the person or firm who purchases the Goods and/or Services from the Supplier. Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer. Delivery Location: has the meaning given in clause 4.2. Force Majeure Event: has the meaning given to it in clause 16. Goods: the goods (or any part of them) set out in the Order. Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier. Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Order: the Customer's written or verbal order for the supply of Goods and/or Services placed with the Supplier’s appointed Customer sales agent. Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification. Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer. Supplier: Rock Chemicals Limited trading as ROCK OIL® registered in England and Wales, whose registered office is at 90 Priestley Street, Warrington, Cheshire, WA5 1ST with company number 00835494. Supplier Materials: has the meaning given in clause 8.1(h). UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018. Warranty Period: has the meaning given in clause 5.1.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes fax and email.
- Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.
2.2 Unless expressly agreed to the contrary in Standing or other Special Terms and Conditions which are agreed at any time between the Supplier and Customer, the Order is accepted when the Supplier issues written acceptance of the Order or accepts the Order at the time of receiving a verbal Order from the Customer, at which point, and on which date the Contract shall come into existence. Written acceptance of an Order may be by email. (Commencement Date).
2.3 Any samples, drawings or advertising issued by the Supplier and any descriptions of the Goods, or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practise or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of five (5) Business Days from its date of issue.
2.6 All these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.7 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents of the Customer that is inconsistent with these Conditions.
3.1 The Goods are described in the Supplier’s catalogue or website, as modified by any applicable Goods Specification.
3.2 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
- Delivery of Goods
4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the contract number and/or relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments may, at the Supplier’s sole discretion but without being obliged to do so, the outstanding balance of Goods remaining to be delivered; and
(b) it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Customer’s expense. Any requirement for the return of packaging or materials will be expressly notified by the Supplier when the Customer places their Order.
4.2 An accepted Order may be delivered either by:
(a) The Supplier delivering the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready; or.
(b) The Customer collecting the Goods from the Supplier’s premises, or such other location as may be agreed with the Customer before delivery (Delivery Location), within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready;
and the Customer acknowledges and agrees that delivery of Goods to a location other than the Supplier’s premises will involve additional costs such as transport and insurance, which are payable by the Customer.
4.3 Delivery of the Goods shall be completed on the completion of unloading or loading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to take or accept delivery of the Goods within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third (3rd) Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.7 If, ten (10) Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery, the Customer has not taken or accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 The Customer must notify the Supplier immediately at the time of Delivery if any Goods (or their packaging) have any obvious damage or defects capable of being identified at the time of delivery.
4.11 The Customer must check the Goods and notify the Supplier in writing within the Warranty Period in clause 5.1 below, if any Goods have any latent defects or damage. No claims of patent or latent defects in respect of the Goods may be notified or claimed by the Customer outside the Warranty Period.
- Quality of Goods
5.1 The Supplier warrants that on delivery, and for a period of three (3) months following delivery (‘Warranty Period’), the Goods shall:
(a) conform in all material respects with their description and any applicable Goods Specification; and
(b) be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier within the Warranty Period that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost or direction,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practise regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises due to fair wear and tear, wilful damage, negligence, or abnormal working conditions including in respect of any packaging or container in which the Goods are delivered by the Supplier; or
(f) the Goods differ from their description or any Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
- Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(d); and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
- Supply of Services
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use reasonable endeavours to meet any performance dates expressly notified in writing by the Customer at the time of placing its Order for the Services, but any such dates shall be estimates only, and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
- Customer’s obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Service Specification and any Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Service Specification and the Goods Specification; and
(j) the Standing Supply Specific Terms & Conditions (‘SSST&C’) set out at Clause 18 of these Conditions, or any other special conditions which may at any time be agreed in writing between the Customer and Supplier.
8.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
- Charges and payment
9.1 The price for Goods:
(a) shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of acceptance of the Order; and
(b) shall, unless otherwise agreed in writing by the Customer and Supplier in any special conditions or at the time of acceptance of the Order by the Supplier, be exclusive of all costs and charges of packaging, insurance, transport of the Goods, and will be payable by the Customer.
9.2 The charges for Services shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier’s daily fee rates, or other prices and costs for the same as agreed between the Customer and Supplier at the time when an Order for Services is accepted by the Supplier.
(b) the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm, worked on Business Days;
(c) the Supplier shall be entitled to charge an overtime rate of 50% of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2(b); and
(d) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
9.3 The Supplier reserves the right to:
(a) increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index or the Average Weekly Earnings Index (whichever is the greater)] in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index or the Average Weekly Earnings Index as the case may be.
(b) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods; and
the Customer acknowledges and agrees, that any such unilateral price increase may be notified and is legally binding and effective in respect of any Order for Goods which may be affected by it.
9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on such terms as it may, in its absolute discretion determine having regard to the Services provided, including without limitation completion of the Services or by specified periodic weekly or monthly invoices in arrears.
9.5 The Customer shall pay each invoice submitted by the Supplier in full and in cleared funds, to a bank account nominated in writing by the Supplier, either:
(a) Immediately on the date when the invoice for Services is issued and notified to the Customer; or
(b) in accordance with such credit terms agreed in writing by the Supplier and confirmed in writing to the Customer; and
(c) time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 14, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
- Data protection
11.1 The following definitions apply in this clause 11:
(a) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
(c) Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
11.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller, and the Supplier is the Processor.
11.4 Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.
11.5 Without prejudice to the generality of clause 11.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
11.6 The Customer consents to the Supplier appointing another person as a third-party processor of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement either substantially on that third party’s standard terms of business, or on terms which are substantially similar to those set out in this clause 11, and in either case which the Supplier believes will reflect and continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.6.
11.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two (2) years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, Customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
- Limitation of liability:
13.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5 million per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
13.2 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
(d) defective products under the Consumer Protection Act 1987.
13.5 Subject to clause 13.4, the Supplier’s total liability to the Customer shall not exceed £5 million.
13.6 This clause 13.6 sets out specific heads of excluded loss:
(a) The following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
13.7 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.8 This clause 13 shall survive termination of the Contract.
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than six (6) months’ written notice.
14.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
14.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of Control of the Customer.
14.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
- Consequences of termination
15.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
- Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for seven (7) Business Days, the party not affected may terminate the Contract by giving 14 Business Days written notice to the affected party.
17.1 Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner, with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the following addresses (or an address substituted in writing by the party to be served):
Supplier: The Supplier’s address and email details as notified and contained in the Supplier’s accreditation letter sent initially to the Customer when creating the Customer account with the Supplier.
Customer: The Customer’s address and email details as notified and contained in the Supplier’s accreditation letter sent initially to the Customer when creating the Customer account with the Supplier.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
17.7 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formalities.
- STANDING SUPPLY SPECIFIC TERMS & CONDITIONS
18.1 The following STANDING SUPPLY SPECIFIC TERMS & CONDITIONS (‘SSST&C’) apply, as and if appropriate.
18.2 If Supplier is supplying Bulk Lube Oil which is pumped into a Customer’s tanks at its premises, then the following Standing Supply Specific Terms and Conditions apply:
(a) It shall be the Customer’s responsibility to check that the description on the IBC matches the description of the Goods ordered prior to the delivery commencing;
(b) It shall be the Customer’s responsibility to check that the IBC pump-off hose is connected to the correct delivery point (tank inlet) prior to the delivery commencing;
(c) It shall be the Customer’s responsibility to check that the destination tank is capable of accepting the full ordered quantity of Bulk Lube Oil, and is otherwise fit for purpose; and
(d) It shall be the Customer’s responsibility to verify that the full quantity has been accepted and the delivery terminated without leakage or defect.
18.3 If Supplier is supplying Packaged IBC, DRUM, Bottles, Tubes & Aerosols, then the following Standing Supply Specific Terms and Conditions apply:
(a) The Customer is liable for checking quantity and quality of Goods at the time of delivery and that any defects/damage or shortage are clearly marked on the delivery note and reported via email. If these have been checked and a reasonable defect is found after delivery: (for example a box opened and missing bottles or labels etc.), then the Customer must, as soon as practicable and, in any event, within ten (10) Business Days of delivery of the Goods, provide the following to Supplier so that it can further investigate the asserted defect or shortage. Supplier will do so, while always reserving to itself the right to decide whether Supplier is able to support credit or return Goods, or Supplier deems the issue to be the responsibility and sole liability of the Customer.
(b) Information to be supplied by Customer:
(i) Telephone/Email to request return providing photos, batch, SO and details of claim.
(c) Process which will be applied by Supplier
(i) Await approval;
(ii) If approved, then a returns number will be provided & Supplier will organise collection;
(iii) Once returned a credit note will be raised;
(iv) This can then be used on the account; and
(v) Supplier does not accept debit notes.
18.4 If Supplier is supplying Bulk Fuel, then the following Standing Supply Specific Terms and Conditions apply:
(a) It shall be the Customer’s responsibility to check that the description on the Customer bulk fuel tanks, matches the description of the Goods ordered prior to the delivery commencing;
(b) It shall be the Customer’s responsibility to check that the Customer bulk fuel tank pump-off hose is connected to the correct delivery point (tank inlet) prior to the delivery commencing;
(c) It shall be the Customer’s responsibility to check that the destination tank is capable of accepting the full ordered quantity, and is otherwise fit for purpose; and
(d) It shall be the Customer’s responsibility to verify that the full quantity has been accepted and the delivery terminated without leakage or defect.
18.5 If Supplier is supplying Goods which are Customer Own brand packaged, then the following Standing Supply Specific Terms and Conditions apply:
(a) Notwithstanding any provisions of the Standard Terms and Conditions, it is acknowledged and agreed by the Customer that Supplier has no liability to the Customer for any defect, omission or error of any kind in any Customer instructions or communications relating to:
(i) Specific own brand Customer packaging wording;
(ii) Specific own brand blend information;
(iii) Legal compliances of any, and all such Customer own brand instructions relating to packaging or blend / formula information, including but not limited to false, misleading or deceptive advertising or consumer product claims or formulae, or their compliance with any Goods with chemical, safety, hazardous goods or other like laws which apply to such Goods.
(b) The Customer releases Supplier from all claims which might otherwise be brought against Supplier by it, and must fully indemnify and keep Supplier indemnified from and against any and all claims, proceedings, actions or threats of the same, and all costs including legal costs on a full indemnified basis, which may be brought against Supplier in respect of its manufacture and supply of such Goods in accordance with the Customer’s instructions and specifications, and such indemnification is not limited either as to the nature of the liability or the amount.
18.6 Further, where a Customer for any reason, wishes to discontinue any Own brand Goods, or in any way amend its brand packaging, or blending or formula(e) for Own brand Goods being manufactured and supplied for it by Supplier, the Customer must:
(a) Provide a reasonable period of written notice to Supplier of its intentions;
(b) Purchase all Own brand Goods which have been manufactured or are in the process of being manufactured by Supplier for the Customer at the time of such notice pursuant to existing or reasonably anticipated Orders (having regard to past practice between the Parties); and
(c) Provide Supplier with reasonable, and in any event, agreed notice and new instructions in writing, and brand designs and packaging corresponding with any new Own brand Goods, which it wishes to have manufactured and supplied by Supplier.
18.7 The Customer acknowledges and agrees that under no circumstances will Supplier accept or be liable or responsible for the cost of production or loss of profit on Own brand Goods which it manufactures in good faith pursuant to existing Orders placed, or in respect of raw materials and Goods manufactured in reasonable anticipation of Orders based on past practice.
18.8 If Supplier is manufacturing and supplying Goods in the form of Lubricating Oils, then the following Order process will apply:
(a) Orders can be placed via telephone, verbal during a Supplier representative visit, or via email to or****@ro*****.uk
(b) The Supplier will confirm the placement of the Order be sending Customer an Order acknowledgement by email, however, if no email address has been provided, the Parties agree that the Order will be deemed to have been duly placed and accepted.
(c) The acknowledgment includes delivery address, expected date, product, pack-size and price. Customer must check these acknowledgement details within 24hrs of receipt, and if there is no request for amendment or query as to price then Supplier will not offer a credit note.
(d) If Supplier is manufacturing and supplying Goods in the form of fuels, then the following Order process will apply:
(i) Orders will generally be taken by telephone or email and prices confirmed for the day of delivery using the same method as the Order. If the delivery date is changed, then Customer agrees that the price will change with it because purchase prices are only relevant to that day, and for that reason Supplier does not provide an Order confirmation in respect of the supply of fuels.
SSST&C 6: Timings
18.9 The Customer acknowledges and agrees that:
(a) The expected delivery lead time for Goods held in stock by Supplier is five (5) Business Days.
(b) The delivery lead time is calculated as follows:
(i) The date of receipt of the Order is treated as Business Day 1, if the Order is received before 1.00 pm;
(ii) The next Business Day following the date or receipt of the Order is treated as Working Day 1, if the Order is received after 1.00 pm;
(c) The timings for the supply of ‘make-to-order’ Goods will only be confirmed once all details relating to their manufacture and supply to order have been determined and agreed in writing by the Parties.
(d) Supplier reserves the right to deliver Goods earlier than the specified delivery date for an Order, should the Goods be available for early delivery.
(e) Without limiting any other provisions in these Conditions, Supplier may, on occasion, in its absolute discretion, agree or request that the Customer collect the Goods, however this must be in accordance with Supplier’s collection policy from time to time, and all collections must be pre-booked with Supplier. Should Customer not collect Goods on the agreed collection date and time, Supplier reserves the right to invoice and be paid for the Goods and for any subsequent delivery/storage costs it may incur prior to the Goods being collected by the Customer.
SSST&C 7 – Miscellaneous matters
18.10 The supply of IBCs is chargeable in line with current costs.
18.11 Supplier is under no obligation to collect but may, on occasion, in its absolute discretion, agree to collect IBCs with the next Order placed with Supplier, however costs for this must be agreed between Supplier and the Customer at the time of making any such IBC collection arrangement.
18.12 Supplier will sometimes, with the consent of the Customer, place Supplier or third-party equipment (‘Placed Equipment’) within a Customer’s premises. Where it does so, the Customer acknowledges and agrees that it accepts full responsibility for the Placed Equipment, on an “all risks basis” (including but not limited to loss, damage and theft), for the entire period during which the Placed Equipment remains on its premises. The Customer must insure the Placed Equipment with a reputable insurer on an “all risks” basis while the Placed Equipment is on its premises, which insurance must cover placement and replacement, removal and rectification, and site restoration and any decontamination activities if required at the premises, to restore the premises to their condition prior to the Placed Equipment having been placed on the premises by Supplier or its authorized third-party. The Customer is solely responsible for undertaking any requisite maintenance and repairs to the Placed Equipment to ensure that the Placed Equipment is safe to use and operate, and complies with all occupational, health and safety requirements of the premises.
18.13 Supplier may give reasonable notice in writing to the Customer that it requires the return of the Placed Equipment. The Customer must comply with any notice in writing for the return of Supplier’s Placed Equipment within 48 hours of receipt of such notice, and unless otherwise agreed, the risk of return of all Placed Equipment items will continue to remain solely with the Customer until the Placed Equipment has been received and accepted as returned/received by Supplier at Supplier’s premises.
18.14 The following financial arrangements may apply if notified in writing by Supplier.
18.15 Supplier reserves the right to review and revise any credit application approval with a Customer, and to amend its usual standard terms of credit (i.e., payment due on 15th of each month following invoice payable by DD collection.)