In these Terms, the following definitions apply
Applicable Legal and Regulatory Requirements means all applicable, enactments, orders, regulations and recognised international standards governing the supply and use of the Products generally in any jurisdiction whether more particularly referenced in an individual Order or not.
Commencement Date: has the meaning set out in clause 2.2.
Contract: the contract between the Supplier and the Buyer for the supply of Products in accordance with these Terms.
Buyer: the person, organisation, firm or company (or other legal entity) who purchases the Products from the Supplier.
Delivery Location: has the meaning set out in clause 4.1.
Delivery Note: any delivery note accompanying the Products to be signed by the Buyer in accordance with clause 4.5.
Force Majeure Event: has the meaning given to it in clause 12.1.
Products: the products set out in the Order.
Products Specification: the specification for the Products.
Quotation: the Supplier’s quotation submitted to the Buyer in advance of the Contract for the supply of the Products.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 Buyer’s order for the supply of Products, as set out on the Order Form.
Order Confirmation: the Supplier’s written form of acknowledgement and acceptance of the Order.
Order Form: the form incorporating the applicable Products Specification.
Restricted Party: any legal entity or person who is identified from time to time by any government or legal authority under applicable trade sanctions, export controls, anti-money laundering, non-proliferation, anti-terrorism or similar laws as a person or entity with whom trade or financial dealings and transactions by the Supplier and or its affiliates are prohibited or restricted.
Supplier: Advanced Material Development Limited a company registered in England and Wales with company number 10849490.
Terms: these terms and conditions as amended from time to time in accordance with clause 13.7.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Buyer to purchase Products in accordance with these Terms.
2.2 The Order shall only be deemed to be accepted when the Supplier issues the Order Confirmation at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract expressly incorporates these Terms together with any individual terms and conditions expressly agreed between the parties in the Order. The Contract constitutes the entire agreement between the parties and these Terms apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Any quotation given by the Supplier is only valid for a period of 30 days from its date of issue. Quotations are not binding on the Supplier until an Order has been accepted.
3. SUPPLIER’S WARRANTY
3.1 The Products are described by the applicable Products Specification which the Supplier reserves the right to amend if required by any Applicable Legal and Regulatory Requirements.
3.2 The Supplier warrants that on delivery the Products shall materially conform to the Products Specification for the period specified in the Order Form or ten weeks (subject always to the provisions of clause 3.5 below) if no period is so specified .
3.3 The Products are supplied “as is” to meet the Products Specification only and the Supplier makes no other warranty. In particular, but without limitation, the Supplier gives no warranty and makes no representation about the particular properties or characteristics of the Products described in the Products Specification being fit for any particular purpose or intended use by the Buyer (whether or not the Buyer has informed the Buyer of its planned or intended use).
3.4 Subject to clause 3.5, if:
(a) the Buyer gives notice in writing during the specified warranty period and within a reasonable time of discovery that the Products do not comply with the warranty set out in clause 3.2;
(b) the Supplier is given a reasonable opportunity of examining such Products; and
(c) the Buyer (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Buyer’s cost (such cost to be refunded in the event that it is proven that the Products are defective),
(d) the Supplier shall, at its discretion, replace the defective Products, or refund the price of the defective Products in full.
3.5 The Supplier shall not be liable for the Products’ failure to comply with the warranty in clause 3.2 if:
(a) the Buyer makes any further use of such Products after giving a notice in accordance with clause 3.4 (a);
(b) the defect arises because the Buyer failed to follow any of the Supplier’s oral or written instructions as to the storage, use or maintenance of the Products or (if there are none) good trade practice;
(c) the Buyer alters or repairs such Products without the written consent of the Supplier;
(d) the Products differ from the Products Specification due to changes made to ensure they comply with Applicable Legal and Regulatory Requirements.
3.6 Except as provided in this clause 3, the Supplier shall have no liability to the Buyer in respect of the Products’ failure to comply with the warranty set out in clause 3.
4. DELIVERY OF PRODUCTS AND RETURNS
4.1 The Supplier shall deliver the Products 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 Buyer that the Products are ready. Unless otherwise specified by the Supplier on the Order Form the Products shall be delivered ex works (Seller’s named place of business, Incoterms 2010).
4.2 Delivery of the Products shall be completed on the Products’ arrival at the Delivery Location.
4.3 Provided always that the Supplier shall use reasonable endeavours to meet any quoted dates for delivery the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Buyer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.4 Where the Order Confirmation provides that the Supplier is responsible for arranging transit of the Products to the Delivery Location, the Buyer must check the Products upon receipt and report any damage, loss or unsatisfactory condition on the enclosed Delivery Note.
4.5 Except for returns for valid warranty claims made under clause 3 of these Terms no returns will be accepted by the Supplier without its prior written agreement and any such returns shall be at the Supplier’s sole discretion on the basis of its returns policy in place at the time.
5. TITLE AND RISK
5.1 The risk in the Products shall pass to the Buyer on completion of delivery.
5.2 Title to the Products shall not pass to the Buyer until the Supplier receives payment in full (in cleared funds) for the Products.
6. BUYER’S OBLIGATIONS AND RESTRICTIONS ON USE OF PRODUCTS
6.1 The Buyer is solely responsible for satisfying itself that the use to which it intends to put the Products complies and/or is compatible with Applicable Legal and Regulatory Requirements pertaining thereto in any jurisdiction and that any necessary clearances, consents or requirements of any competent authority in the jurisdiction connected to the supply or use of the Products (or any process involving the Products or any use in combination with other products) are met in full .
6.2 The Buyer shall in complying with the above obligations take any and all appropriate steps, measures and safeguards at its own cost so as to ensure that the Products meet any Applicable Legal and Regulatory Requirements and it shall maintain in force all such appropriate insurance policies (which the Supplier shall be entitled to inspect upon it request) so as to provide adequate cover against the risk of breach.
6.3 The Buyer shall not, without limitation, use the Products other than for the permitted purpose and use specified in the Order and under no circumstances shall the Buyer use the Products to engage in any illegal, unethical or morally repugnant activities (the latter two being determined by the Seller in its sole discretion) or to manufacture munitions or munitions systems or for animal testing or genetic modification Further the Buyer hereby represents and warrants that it shall not have any dealings relating to the Products or otherwise with any rogue states or regimes as defined from time to time including but not limited to those embargoed destinations listed by the UK Department for International Trade at www.gov.uk/guidance/current-arms-embargoes-and-other-restrictions .
6.4 The Buyer hereby warrants that it is not a Restricted Party nor will it supply or seek to supply the Products to a Restricted Party.
6.5 Unless previously agreed with the Supplier, the Buyer is not, under any circumstances, permitted to distribute, license or sell or otherwise deal in or encumber the Products or to attempt to adapt, disassemble, reverse engineer or decompile the Products (or any part of them) nor make any modifications or additions thereto without the express written authority of the Supplier. Subject to the other provisions of this Contract, the Buyer shall be permitted to combine, merge or otherwise permit the Products to become incorporated in products of its own provided that they do not compete with the Supplier.
7. CHARGES AND PAYMENT
7.1 The price for Products shall be the price set out in the Order Confirmation. The price of the Products is exclusive of all costs and charges of packaging, insurance, transport of the Products, which shall be paid by the Buyer when it pays for the Products.
7.2 All amounts payable by the Buyer 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 Buyer, the Buyer 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 Products at the same time as payment is due for the supply of the Products.
7.3 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Buyer against any amount payable by the Supplier to the Buyer.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Buyer acknowledges that all Intellectual Property Rights relating to the Products shall remain the exclusive property of the Supplier or, where applicable its suppliers or partners and shall not be used, distributed, licensed, disclosed or registered by the Buyer or any third party without prior written consent of the Supplier.
The Buyer (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the Supplier (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
For the avoidance of doubt the pricing and specific formulation particulars relating to the Products constitute the confidential information of the Supplier.
This clause 9 shall survive termination of the Contract.
10. LIMITATION OF LIABILITY AND INDEMNITIES
THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 Nothing in these Terms shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) defective products under the Consumer Protection Act 1987.
10.2 Subject to clause 10.1:
(a) the Supplier shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Products paid for under the Contract.
10.3 In relation to a breach of this Agreement, any direct or consequential loss includes but is not limited to:
(a) liability under other agreements or liabilities to third parties resulting from such breach;
(b) loss of contract;
(c) loss of goodwill;
(d) loss of production;
(e) loss of profit;
(f) loss of revenue;
(g) loss or damage to premises;
(h) property or assets; or
(i) Buyers’ overhead costs,
whether or not the party committing such breach knew or ought to have known, that such loss would be likely to be suffered as a result of such breach.
10.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.5 BUYER’S INDEMNITY. The Buyer hereby indemnifies the Supplier (on a full indemnity basis) from and against any and all costs, claims, losses, proceedings or other liabilities (whether party to party or from a third party) whatsoever and howsoever arising from a breach of its obligations and restrictions imposed on it under clause 6 including without limitation as a result of it becoming a Restricted Party or attempting to supply the Products to a Restricted Party.
10.6 This clause 10 shall survive termination of the Contract.
11.1 Without limiting its other rights or remedies, each 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 this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so; and
(b) a resolution for winding up (other than for the purposes of a solvent amalgamation or reconstruction) is made against the other party or a court shall make any order to that effect, or the other party shall cease or threaten to cease its business or becomes or is declared insolvent or (being an individual) bankrupt or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over its assets or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due or any other analogous event or measure of equivalent effect takes place (in any jurisdiction) that threatens the ability (or prejudices the party that is the subject of the event in any way) of that party to perform its obligations (financial or otherwise) under the Contract.
11.2 Without limiting its other rights or remedies, the Supplier may, at its sole discretion, with immediate effect by giving written notice to the Buyer, suspend all further deliveries of the Products under the Contract if the Buyer fails to pay any amount due under the Contract on the due date for payment or becomes (or the Supplier reasonably believes will become) subject to any of the events listed in clause 11.1 (b) above terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under this Contract on the due date for payment.
11.3 The Supplier may terminate the Contract with immediate effect and no further liability to the Buyer if the Buyer is or becomes a Restricted Party or seeks to supply the Products or any other product incorporating the Products to a Restricted Party,
11.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest. The accrued rights and remedies of the Supplier at termination shall not be affected, 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.
12. FORCE MAJEURE
12.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
12.2 The Supplier shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.3 If the Force Majeure Event prevents the Supplier from providing any of the Products for more than eight weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.
13.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Buyer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. For the avoidance of doubt the Buyer is not entitled to resell the Products to third parties.
13.2 Notices. Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business or abode (in any other case) and shall be delivered personally or sent by prepaid first class post or other next working day delivery service, or by commercial courier or email.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
13.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.7 Variation. Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and Terms shall be effective unless it is agreed in writing and signed by the Supplier.
13.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
13.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).