Termes et Conditions

U-POL LIMITED Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 In these Conditions, the following words and phrases shall have the following meanings:

« Conditions » means these terms and conditions of sale.

« Contract » means a contract for the sale of Goods and Services made by or on behalf of the Supplier with a Customer.

« Customer » means a person to whom the Supplier supplies or is to supply Goods and Services pursuant to a Contract.

« Force Majeure Event » means any circumstance beyond the control of the Supplier including, but not limited to acts of God, fire, explosion, adverse weather conditions, flood, earthquake, terrorism, riot, civil commotion, war, hostilities, strikes, work stoppages, slow-downs or other industrial disputes, accidents, riots or civil disturbances, acts of Government, lack of power and delays by suppliers or materials shortages.

« Goods » means the goods which the Supplier supplies pursuant to a Contract.

« SDS » means the relevant Safety Datasheet available from the Supplier and updated from time to time.

« Incoterms » means the Incoterms 2010 published by the International Chamber of Commerce or any amended, restated or replacement Incoterms that may be published by the International Chamber of Commerce from time to time.

« Order » means an order in writing for the Goods and Services received by the Supplier from the Customer.

« Services » means the services which the Supplier provides pursuant to a Contract.

« Supplier » means U-POL Limited a company registered in England and Wales under number 00464919 whose registered office is at 4th Floor, The Grange, 100 High Street, London, N14 6BN.

« Working Day » means any day (other than a Saturday, Sunday or public holiday) in England and Wales.

1.2 In these Conditions:

1.2.1 construction of these Conditions shall ignore the headings (all of which are for reference only); and

1.2.2 any reference to any statute or statutory provision is a reference to it as it is in force for the time being taking account of any subsequent re-enactment, extension or amending provision, and includes any subordinate legislation for the time being made under it.

1.3 These Conditions shall govern and be incorporated into every Contract, and shall prevail over any terms or conditions (whether or not inconsistent with these Conditions) contained or referred to in any correspondence, Order, documentation submitted by the Customer or elsewhere or implied by custom, practice or course of dealing.

1.4 The Customer’s acceptance of delivery of the Goods or performance of the Services shall (without prejudice to condition 3 or any other manner in which acceptance of these Conditions may be evidenced) constitute unqualified acceptance of these Conditions.

2. QUOTATIONS AND ACCEPTANCE

2.1 A quotation by the Supplier does not constitute an offer and the Supplier reserves the right to withdraw or revise a quotation at any time before it accepts an Order.

2.2 The Supplier’s acceptance of any Order shall be effective only where such acceptance is either in writing or on the Supplier’s order acceptance form and signed by an authorised representative of the Supplier.

3. PRICE

3.1 The price of the Goods shall be stated in the Order and shall be exclusive of all taxes, duties, levies and charges.

3.2 The Supplier has a general lien on all the Customer’s property in the Supplier’s possession (although the Customer may have paid for it in full) in satisfaction of any amount owed by the Customer to the Supplier under any Contract, and may deal with it as it sees fit.

3.3 The Supplier may at any time prior to delivery of the Goods or performance of the Services:

3.3.1 withdraw any discount from its normal prices; and/or

3.3.2 revise prices to take account of increases in costs including, without limitation, the cost of any goods, raw materials, transport, labour or overheads, the increase or imposition of any tax, duty or other levy and any variation in exchange rates.

3.4 The Supplier shall (if applicable) add to the price of the Goods and Services, and the Customer shall pay, an amount equal to any VAT or other sales tax or duty applicable from time to time to sales or supplies of such Goods and Services.

4. PAYMENT

4.1 The Customer shall make all payments due to the Supplier under any Contract in accordance with the terms stated on the invoice. All accounts are net and payable in the currency specified on the invoice or such other currency as the Supplier may agree in writing with the Customer from time to time in cleared funds within [30] days of the date of the relevant invoice.

4.2 Time of payment is of the essence of a Contract and the Supplier reserves the right to suspend the provision of Goods or Services to the Customer where any amounts are overdue under any Contract until all such amounts have been paid.

4.3 In the event where the Customer fails to pay any amount due to the Supplier under any Contract on the due date, interest shall be added to such amount at the rate of 4% over the base rate for the time being of the Suppliers’ bank from time to time, such interest to accrue on a daily basis from the period from and including the date of receipt (whether before or after judgment). The Supplier shall also, at its discretion, be entitled to cancel any contract and/or suspend delivery of any Orders.

4.4 The Customer is not entitled to withhold payment of any amount due to the Supplier by way of any set-off or counterclaim.

4.5 If, in the Supplier’s view, the Customer’s credit-worthiness deteriorates before delivery of the Goods or performance of the Services, the Supplier may require payment in full or in part of the price prior to delivery or performance, or the provision of security for payment by the Customer in such form as is acceptable to the Supplier.

5. RISK AND TITLE

5.1 Unless the Supplier has agreed in writing at the time that the Order is accepted that risk shall pass in accordance with a particular set of Incoterms, risk for the Goods shall pass to the Customer at the point the Goods leave the Supplier’s premises. Where the Supplier has agreed in writing at the time of accepting the Order that risk shall pass in accordance with a particular set of Incoterms then such Incoterms shall govern the passing of risk in respect of that Order only. Title to the Goods (whether separate, identifiable or incorporated in or mixed with other goods) remains with the Supplier until the Supplier has received cleared funds in full payment for the agreed price of the Goods (together with any accrued interest at the rate specified in condition 4.3 and all other amounts owed by the Customer to the Supplier in respect of any other goods or agreement.

5.2 Until title to the Goods passes to the Customer under condition 5.1, the Customer shall:

5.2.1 hold the Goods as bailee in a fiduciary capacity for the Supplier;

5.2.2 keep the Goods separately and readily identifiable as the property of the Supplier;

5.2.3 not attach the Goods to real property without the Supplier’s consent; and

5.2.4 keep the Goods stored, protected and insured for their full value with a reputable insurer.

5.3 At any time before title to the Goods passes to the Customer (whether or not in payment to the Supplier is then overdue or the Customer is otherwise in breach of any obligations to the Supplier), the Supplier may (without prejudice to any other of its rights):

5.3.1 retake possession of all or any part of the Goods and shall be entitled to enter the Customer’s premises for that purpose (or authorise other to do so) which the Customer hereby authorises;

5.3.2 require delivery up to it of all or any part of the Goods.

5.4 Any property of the Customer in the Supplier’s possession or under its control and all property supplied to the Supplier by or on behalf of the Customer is held by the Supplier at the Customer’s risk.

5.5 Section 32(2) of the Sale of Goods Act 1979 does not apply and the Supplier is not required to give the Customer the notice specified in section 32(3) of that Act.

6. WARRANTY AND LIABILITY

6.1 Subject to these Conditions, the Supplier warrants that the Goods and Services will:

6.1.1 correspond with their specification; and

6.1.2 will be of satisfactory quality,

for a period of twelve (12) months (or such lesser period as indicated on the products and/or data sheet) from the date on which the Goods leave the Supplier’s premises.

6.2 Except as set out in this condition 6.2, all conditions, warranties and representations, expressed or implied by statute, common law or otherwise, in relation to the supply, non-supply or delay in supplying the Goods and Services and all other statutory or implied warranties as to the quality of the Goods are excluded to the extent permitted by law.

6.3 The warranties given in condition 6 are given on the following conditions:

6.3.1 the Supplier is not liable for a defect in the Goods or Services caused by fair wear and tear, abnormal or unsuitable conditions or storage or use or an act, neglect or default of a Customer or third party; and

6.3.2 the Supplier is not liable for a defect in the Goods or Services, unless it is notified to the Supplier within seven (7) Working Days of the date of delivery or performance or, if the defect would not be apparent on reasonable inspection, within three (3) months of the date of delivery or performance.

6.4 The Supplier is not liable for non-delivery or non-performance, unless the Customer notifies the Supplier of the claim within seven (7) Working Days of the date of the later of:

6.4.1 delivery of the relevant Goods or Services; or

6.4.2 the Supplier’s invoice.

6.5 The dates mentioned in any quotation, Order, acceptance form or elsewhere for the delivery of Goods or performing the Services are approximate only and time for delivery or performance is not of the essence and shall not be made so by the service of any notice,

6.6 The Supplier shall be under no liability in respect of any defect arising from negligence, abnormal working conditions, misuse or alteration or repair of the Goods, failure to follow any instructions or information given by the Supplier about the Goods (whether oral or in writing) including information relating to health and safety, or failure to provide such information or instructions given by the Supplier to any customer of the Customer.

6.7 The Supplier shall be given a reasonable opportunity to rectify any defect or failure in the Goods or to replace the Goods or to replace the Goods or to refund the price paid at its sole option.

7. INDEMNITY

7.1 Customer shall indemnify the Supplier against all loss, liability and cost which the Supplier incurs in carrying out any work required to be done on or to the Goods or in relation to the Services in accordance with the Customer’s requirements or specifications which give rise to any infringement or alleged infringement of the rights of any third party.

8. LIMITATION OF LIABILITY

8.1 This condition sets out the Supplier’s entire liability arising out of these Conditions, the Contract or any Order and the performance or non-performance of its obligations under the same whether such liability arises in contract, tort, statute or otherwise, in law, equity or otherwise or is direct, indirect, special, consequential or otherwise (including, without limitation, any claim for, relating to, or arising out of the Supplier’s repudiation or wilful abandonment of these Conditions, the Contract or any Order).

8.2 Nothing in this Agreement shall operate to exclude or restrict the Supplier’s liability for:

8.2.1 personal injury or death resulting from the Supplier’s negligence;

8.2.2 the Supplier’s breach of the obligations arising from section 12 of the Sale of Goods Act 1979; or

8.2.3 fraud, including fraudulent misrepresentation, or deceit by or on behalf of the Supplier.

8.3 Subject to conditions 8.1 and 8.2, the Supplier shall not be liable for any indirect, special, or consequential losses, costs, claims, damages or other expenses, (in each case whether such liability arises in contract, tort, statute or otherwise, in law, equity or otherwise).

8.4 Subject to conditions 8.1, 8.2 and 8.3, the Supplier shall not be liable for any of the following losses, costs, claims, damages or other expenses, (in each case whether such liability arises in contract, tort, statute or otherwise, in law, equity or otherwise, and whether such liability is direct, indirect or otherwise):

8.4.1 loss of profit;

8.4.2 loss of business;

8.4.3 loss of revenue;

8.4.4 loss of opportunity;

8.4.5 loss of savings;

8.4.6 loss of the use of money;

8.4.7 loss of existing or future contracts;

8.4.8 loss of data;

8.4.9 loss of goodwill; and/or

8.4.10 loss of reputation.

8.5 Subject to conditions 8.1, 8.2, 8.3 and 8.4, the Supplier’s maximum aggregate liability for all claims arising under these Conditions, the Contract or any Order shall in no event exceed the total of all fees paid or payable by the Customer to the Supplier under this Agreement.

8.6 The Customer agrees that the limitations and exclusions set out in these Conditions are reasonable having regard to the circumstances and that the Supplier’s prices are based on, and reflect, the risk which the Supplier is willing to assume under these Conditions. If any provision of this condition 8 shall be or shall be found by a court or otherwise held to be unlawful or invalid then, to the extent of such unlawfulness or invalidity, such provision shall not apply but the remainder of such provision and the rest of this condition shall remain enforceable to the greatest extent permissible by law, and the Supplier may adjust the prices by a reasonable amount to reflect the increased risk it bears as a result.

8.7 The limits and exclusions contained in this condition 8 are based on the Supplier’s insurance cover and ability to compensate.  The limits may be increased if requested but shall be subject to the Supplier obtaining suitable cover and may require an adjustment to the price payable to reflect any increased premiums.

9. INFRINGEMENTS OF THIRD PARTY RIGHTS

9.1 If any claim is made or action brought or threatened which alleges infringement of the rights of any third party:

9.1.1 the Customer shall notify the Supplier as soon as it becomes aware of such claim;

9.1.2 the Supplier shall have control over and shall conduct any such proceedings in such manner as it shall determine; and

9.1.3 the Customer shall provide all reasonable assistance as the Supplier may reasonable request.

9.2 Where the Goods are sold under a customer transaction, the statutory rights of the Customer are not affected by these Conditions.

10. TERMINATION

If the Customer refuses or fails to take delivery of the Goods delivered in accordance with a Contract or fails to take any action necessary on its part for delivery of the Goods, the Supplier is entitled to terminate the Contract with immediate effect, dispose of the Goods as the Supplier may determine and to recover from the Customer any loss and additional costs incurred as a result of such refusal or failure (including, without limitation, storage costs from the due date of delivery).

11. HEALTH AND SAFETY

The Customer will take any steps specified by the Supplier from time to time to ensure that the Goods will be safe without risks to health at all times when they are being stored, used, cleaned or maintained by any person at work, or when they are being dismantled or disposed of. The Customer shall at all times refer to the health and safety information provided in the product specific SDS when handling the Goods. If distributing the Goods for use by third parties, the Customer shall be responsible for ensuring that the correct and up-to-date SDS is forwarded with relevant Goods. Up-to-date information and product specific SDSs are available at request from www.u-pol.com or by contacting the Supplier directly.

12. FORCE MAJEURE

12.1 For the avoidance of doubt, nothing shall excuse the Customer from any payment obligations under these Conditions.

12.2 If the Supplier is prevented, hindered or delayed from or in supplying the Goods or in performing the Services under these Conditions by a Force Majeure Event the Supplier may, at its sole option, and without being liable for any loss or damage suffered by the Customer as a result:

12.2.1 suspend deliveries or performance while the Force Majeure Event continues;

12.2.2 apportion available stocks of Goods between its customers if the Supplier has insufficient stocks to meet orders; and

12.2.3 terminate any Contract forthwith by giving notice to that effect to the Customer.

13. VARIATION AND WAIVER

13.1 The Supplier has the right to publish new versions of these Conditions on its website from time to time. Any Orders placed subsequent to the publication of such new terms and conditions shall be deemed to be made subject to the new terms and conditions published at the time the Order was placed.

13.2 If the Supplier fails, at any time while these Conditions are in force, to insist that the Customer performs any of its obligations under these Conditions, or if the Supplier does not exercise any of the rights or remedies which it has under these Conditions, then that will not mean that the Supplier has waived such rights or remedies and will not mean that the Customer does not have to comply with those obligations. If the Supplier does waive a default by the Customer, that will not mean that the Supplier will automatically waive any subsequent default by the Customer.

13.3 No waiver, variation or alteration of these Conditions shall be effective unless the Supplier expressly states that it is a waiver and it informs the Customer in writing.

13.4 No variation or alteration of any of the provisions of a Contract or an Order shall be effective unless it is in writing and signed by or on behalf of each party.

14. THIRD PARTY RIGHTS

Except as explicitly set out in these Terms, no Contract will create any right enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it. This condition does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

15. NOTICES

15.1 All notices sent by the Customer to the Supplier must be sent to:

Major Projects Manager

sales@u-pol.com

15.2 The Supplier may give the Customer notice at either the e-mail or postal address provided by the Customer to the Supplier.  Notice will be deemed received and properly served:

15.2.1 twenty-four (24) hours after an e-mail is sent; or

15.2.2 two (2) Working Days after the date of posting of any letter where the Customer’s address is within the United Kingdom; or

15.2.3 five (5) Working Days after the date of posting of any letter where the Customer’s address is outside the United Kingdom.

16. SEVERANCE

16.1 If any of these Conditions are found by any court or administrative body of competent jurisdiction to be invalid or unenforceable as drafted:

16.1.1 such invalidity or unenforceability shall not affect the enforceability of any other of these Conditions which shall remain in full force and effect; and

16.1.2 if it would be valid or enforceable if some part of the condition were amended or deleted, then the conditions shall apply with the modification necessary to make it valid and enforceable.

17. DISPUTE RESOLUTION

17.1 Where there is any disagreement, dispute or claim between the parties, including any dispute regarding the validity or enforceability of these Conditions or the jurisdiction or forum in which the dispute shall be heard (a « Dispute »), the parties each irrevocably agree to settle such Dispute in accordance with this Condition 17.

17.2 Subject to Condition 17.5, the parties shall first attempt to resolve the Dispute informally by either party referring the matter in dispute to an appropriate level of senior managers within five Working Days of the Dispute occurring.  In the event that the aforementioned parties’ representatives are unable to resolve the Dispute within three Working Days of reference to them, then, within one Working Day thereafter, each party shall refer the Dispute to board level executives. In the event that the board level executives are unable to resolve the Dispute within three Working Days of reference to them, then Condition 17.4 shall apply.

17.3 All involved parties shall be entitled to make oral and/or written representations prior to any of the meetings taking place at each escalation level referred to above.

17.4 The parties agree that, subject to Condition 17.5, and following the escalation procedure outlined above, any Dispute shall be settled by reference to the courts of England and Wales.

17.5 Nothing in this Agreement shall prevent any party from seeking injunctive relief, including injunctive relief on an ex parte basis, (or any similar remedy available to it in any jurisdiction) without following the procedures outlined in conditions 17.1 to 17.4 where:

17.5.1 it considers such action necessary to protect its intellectual property rights or its confidential information and/or

17.5.2 to enforce any English judgement in another jurisdiction.

18. GOVERNING LAW AND JURISDICTION

18.1 These Conditions shall be governed by and construed in accordance with the provisions of English law and the parties irrevocably submit to the exclusive jurisdiction of the English Courts in relation to these Conditions.