General Terms: These terms and conditions (“Terms and Conditions”) herein written shall govern the sale of Products to buyer ("Buyer”) and shall supersede all previous communications, agreements or contracts, and no term, condition or trade custom in conflict or inconsistent herewith shall be binding upon seller ("Seller") unless agreed to in writing. All orders are subject to acceptance by Seller in the form of a written acknowledgment from Seller or commencement of performance. Seller’s failure to enforce any right it may have under the Terms and Conditions shall not be construed as a waiver thereof, nor shall such failure or failures be deemed to establish any custom, usage, course of dealing or course of performance. These Terms and Conditions may be enforced at any time, inwhole or in part. Any provision hereof which is prohibited or unenforceable in any applicable jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibitionorunenforceabilitywithoutinvalidating the remaining provisions or affecting the validity or enforceability in any other jurisdiction. Seller may assign, mortgage, subcontract, charge, declare trust over or deal in any other manner with any or all rights under these Terms and Conditions. Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare trust over or deal in any other mannerwith any of its rights under these Terms and Conditions without prior written approval from Seller. TheseTermsandConditionsapplytotheexclusionof any other terms that Buyer seeks to impose or incorporate, orwhichareimplied by law, trade, custom, practice or course of dealing.
Payment: Products may require full or partial payment in advance or upon delivery, other security for payment or performance, or may impose such other credit or payment terms as Seller deems appropriate in its sole discretion. Prices are subject to change without notice and the price for the product shall be the prices in effect at the time of shipment. Prices are exclusive of VAT and all other taxes which shall be Buyer’s responsibility (other than taxes on Seller including net income or gross receipts). All made-to-order or non-stock materials will be invoiced on the total batch yield within ten percent (10%) which may exceed quantity ordered. Inthe event Buyer claims an exemptionfrom any tax, a valid tax exemption certificate must be furnished to Seller uponplacing an order. Invoices are due for payment 30 days after date of invoice unless otherwise agreedto in writing by Seller. Sums not paidwhen due shall accrue interest each day at 4% a year above the Bank of England's base rate fromtime to time, butat 4% a year for any period when that base rate is below 0%. Buyer may not withhold or set-off payment for Products delivered for any reason whatsoever. Seller reserves the right, among other remedies, either to terminate the sale or to suspend future deliveries upon failure of Buyer to make any payment pursuant to these Terms and Conditions or any other contract between the parties hereto. Buyer shall reimburse Seller in full for all damages, costs and expenses, including reasonable legal fees, which Seller incurs with respect to Buyer’s breachof these Terms and Conditions or any collection efforts by Seller to recover past due amounts from Buyer.
Riskand Title: The risk in the Products shall pass to Buyer inaccordance withthe method of delivery selectedinthe “Shipping/Freightcosts” sectionbelow. Title to the Products shall notpass to Buyer until i) Seller receives payment in full (incash or cleared funds) for the Products and any other Products that Seller has supplied to Buyer in respect of which payment has become due, in whichcase title to the Products shall pass at the time of payment of all such sums, or, if applicable ii) Buyer resells the Products, in their ordinary course of business, as principle and not as Seller’s agent, in which case title to the Products shall pass to Buyer immediately before the time at which Buyer resells the Products.
Until title in the Products passes to Buyer, Buyer shall not encumber, charge or grant security overthe Products and shall store the Products separatelyfrom all other Products held by Buyer so they remain identifiable as Seller’s property, not remove deface or obscure any identifying mark or packaging relating to the Products, maintainthe Products in satisfactory condition and keepthem insured from all risk for their full price from the date of delivery, give Seller such information as they may reasonably require from time to time relating to i) the Products and ii) the ongoing financial positionof Buyer.
At any time before the title in the Products passes to Buyer, Seller may terminate Buyer’s right to resell the goods or use them in its ordinary course of business. Seller may also require Buyer to deliverall of the Products in its possessionthat have not been resold or irrevocably incorporated into another product and if
Buyer fails to do so promptly Sellermay enter, orinstruct its agent to enter on its behalf, any of Buyer’s premises or any third party premises where the Products are stored in orderto recoverthem.
CreditTerms:If applicable, credit terms are subject to Seller’s continuing approval of Buyer’s credit, and if, in Seller’s sole judgment, Buyer’s credit or financial standing is impaired so as to cause Seller to deem Buyer insecure, Seller may withdraw the extension of creditand require otherpayment terms and any amount outstanding on Buyer’s credit shall become immediately due and payable in full. Buyer agrees to submit such financial information, from time to time, as may be reasonably requested by Seller forthe establishment and/or continuation of credit terms.
Changes:Any request to change any order with respectto quantity or packaging must be communicated in writing prior to shipment. If such changes result in increased costor time to complete the manufacture of the product(s) or if there is a decrease inthe quantity requested which invalidates any discounts offered by Seller, then the price and timing of the original ordershall be adjustedaccordingly. Buyer agrees to pay any increased costs associatedwiththe changes. Once orders have been accepted by Seller, no changes with respect to specifications will be made or allowed unless they are requested and accepted in writing and the resulting new price and delivery time are agreedupon in writing by both Parties. Additional costs for changes, including any costs for additional engineering, will be reflected in the new price. Cancellations are subject to Seller’s agreementand reasonable cancellation charges which are determinedin the sole discretion of the Seller.
Shipments/Freight Costs: Seller will confirm in writing on which basis the shipment is made, typically this will be FCA (Incoterms 2020) OR FOB shipping point (Incoterms 2020) OR DDP (Incoterms 2020) OR DAP (Incoterms 2020). In absence of express agreement all shipments will be EXW (Incoterms 2020). A minimum shipping charge maybe applicable for orders. Shipping and/or delivery dates are estimates only and Seller shall notbe liable for anydelay or discrepancy in the shipping or delivery of Products. Seller reserves the right tomake deliveries in installments. Delay in delivery of one installment shall not entitle Buyer to cancel otherinstallments. Any applicable freightcosts will be added to the invoice unless customer specifies collecton purchase order.
Field Service: Any applicable fieldservice, technical support, installation supervision, or relatedservice shall be governedby a separate written agreement.
BackOrders:Seller reserves the right tocancel back orders.
Returnof Products: Written authorisation is required from Seller prior to any return shipment, whichmay be granted or denied by Seller in its sole discretion. Custom colors, special orders, or limited-shelf-life materials are not returnable. Likewise, excess product due to Buyer’s overestimate of requirements or need is not subject to return. In the event any terms or conditions of any authorization conflict with these Terms and Conditions, the Seller’s returned goods authorisationshall prevail. Authorised returns must be shipped using the carrier selected by Seller and routed to the location of Seller’s choice. Buyer is responsible for all freight charges. Returns must be shipped in their original unopened cartons. A minimum 25% re-stocking fee will be charged on all authorised returns. Obsolete, damaged, discontinued and/or merchandise over six months old is noteligible for return in any instance.
Claims:Claims resulting from losses, shortages or damage in transit must be acknowledged on the delivery papers at receipt. Buyer shall further promptly notify Seller of any delivery of any damaged product(s) purchasedfrom Seller, or of any complaint whatsoever Buyermay have concerning delivery. Buyer’s failure to give such notice and to note such damage constitutes a waiver of any claim against Seller relating to the damaged product. Anyclaim for any other cause not specifically set forth inthese Terms and Conditions shall be deemedwaived and released by Buyer unless made in writing within five (5) business days after Buyer’s receipt of the product(s).
Warranty:Seller warrants that on delivery the materials purchasedby Buyerare free of defects in design, material and workmanship and of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and further guarantees to replace any material which is determined by Seller, in its sole discretion, to be defective or not inconformity with Seller’s mostcurrent publishedspecifications.
If applicable, additional warranty terms are statedonthe product label/data sheet or on an additional warranty document and supersede the terms herein. Any general technical or production data, performance figures, descriptions, properties, photographs, illustrations, drawings, or other general information provided or made available by Seller with respect to the Products (whethervia a website or in any catalogues or publications) are provided for the purpose of giving approximate informationpertaining to the Products andshall not formpart of the Terms and Conditions nor have any contractual force. No claims will be considered until the product in question has been inspected by a Seller representative. All claims for allegedly non-conforming, defective or damaged Products shall be made by Buyer in writing within thirty (30) days of receipt of shipment of Products, after whichthe Products shall be deemed acceptedfor all purposes and Seller shall have no liability for the same. SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIMS EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS TO THE EXTENT PERMITTED BY
LAW. The warranty set forth on the product label shall be void, and shall not apply to any Products (i) which have been altered, modified or combinedwith any other materials other than materials as specified on the Products’ labeling, (ii) which have been subject to improper storage orhandling (iii) which have beenexposed to conditions beyond the operating constraints specifiedby Seller in its labeling, or iv) which Buyer makes further use of after Buyer becomes aware, or should have become aware of any non-conformance, defect or damage. With the exception of the warranty terms set forth hereinor, if applicable, onthe Product label, it is Buyer’s sole responsibility to test the Product to ensure that it is fit for the use intendedby Buyer or any end user.
LimitedLiability:SELLERSHALLNOTBELIABLETOBUYER,BUYER’SCUSTOMERSORANY PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL,ORINDIRECTDAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS,LOSSOFSALES OR BUSINESS, LOSS OF AGREEMENTS OR CONTRACTS, LOSS OFANTICIPATEDSAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA ORINFORMATION,BUSINESSINTERRUPTIONLOSSES,LOSSOFGOODWILL,LOSSOFOPPORTUNITY).ASA RESULT OF SUPPLYING PRODUCT TO CUSTOMERS OROTHERSAND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), BREACHOFSTATUTORYDUTY,RESTITUTION,CONTRACT OROTHERWISE.NOTHINGINTHESETERMSSHALLLIMITOREXCLUDESELLER’SLIABILITY FOR DEATH ORPERSONALINJURYCAUSEDBYITSNEGLIGENCE ORFRAUDORFRAUDULENTMISREPRESENTATION.SELLER’SEXCLUSIVE LIABILITY AND BUYER'S SOLEREMEDYIN THE EVENT OF A NON-CONFORMING PRODUCT SHALL BEREPLACEMENTOFTHEDEFECTIVEPRODUCTWITHCONFORMINGPRODUCT.INNOEVENTSHALLSELLER’S TOTALLIABILITY EXCEED THE PURCHASE PRICE OFTHEPRODUCTATISSUE.
Time Limitation: No dispute, claim or other legal action, regardless of form, may be brought by Buyer for any breach by Seller or any other claim relating to or arising out of the Product, including negligence or any other tort-based claims, after one year from the date of delivery of the Product, unless otherwise agreed to in writing byboth Parties.
Force Majeure: Seller shall not be liable for any failure or delay in performance with respect to delivery or otherwise, if such failure or delay is due to an act of God, flood, earthquake, storm orother adverse weatherevent ornatural disaster, war (or threat of war), civil disturbance, riot, act of terrorism (or threatened act of terrorism), labor difficulties, factory capacity, fire, other casualty, accident, inability toobtain containers or raw materials, supplychainfailure or inability to perform, governmental acts, regulations, guidance or restrictions, including shutdowns and inability to perform due to epidemics, pandemics, or any other cause of any kind whatsoever beyond the reasonable control of Seller. Seller shall have the rightat its option andwithout liabilityto apportionits supplyof product among its customers, including its affiliated divisions and companies, in such a manner as Seller, in its sole discretion, believes equitable. Inno eventshall Seller be obligated to purchase Products from others in order to enable it to deliver Products to Buyer.
Indemnity: Buyershall assume full responsibility for the use of the Products and shall defend, indemnify and hold harmless Seller and its respective affiliates, officers, directors, shareholders, employees, agents and representatives from and
against any and all losses, liabilities, claims, damages, demands, costs and expenses (including without limitation legal fees and court costs on a full indemnity basis) arising outof or relating to same.
Governing Law: All sales are governedby the law of Englandand Wales and Buyer irrevocably and unconditionally submits tothe exclusive jurisdiction of the courts of England and Wales.
Compliancewith Instructions: Buyer shall comply with all applicable written instructions or labels furnished by Seller relating to the installation and use of the product(s) and Buyer agrees not to misuse, modify or misapply such product in any manner. Seller shall not be liable for Buyer’s failure to apply or use the product inaccordance withsuch instructions. Buyer agrees to indemnify and hold Seller harmless from any and all claims, costs, liability, damages and expenses, including attorneys’ fees, against or incurredby Seller due to injuries to persons or propertyin connectionwith Buyer’s application oruse of the product(s). Buyer acknowledges receipt of and familiarity with Seller’s labeling and literature concerning the product(s) andwill forward such informationtoits employees who handle, process or sell such product(s) and to customers or end users of such product(s), where applicable.
Compliance with Applicable Law: Buyer shall comply with all applicable laws and regulations, including but notlimited to the Bribery Act 2010. Buyer shall not sell, export, re-export, transmit, divert or otherwise transfer any goods or Products into or through Cuba, Iran, Sudan, Syria, North Korea, Crimea or any other prohibited jurisdiction, or with or to any party listed on any United States Government, United Kingdom Government or European Union blocked-persons list, as amended from time to time. Buyer represents that it is not on any restricted persons listmaintainedby the U.S., Canada, UK or any memberof the European Union.
CompliancewithApplicablePolicies:Buyer shall comply withall applicable Seller policies including but not limited to Seller’s Values & Expectations of 168 which can be accessed at the following URL https://www.rpminc.com/pdf/CodeGuide lines.pdf and Seller’s Distributor Code of Conduct which can be accessed at the following URL https://www.rpminc.com/distributors-and-applicators-code -of-conduct/.
License: Nothing in these Terms and Conditions is intendedor shall be construed to grant any license or other permission by Seller to Buyer touse any trademarks, trade names, copyrighted materials, patents or other intellectual property rights or interest of Seller at any time. In the event the Parties have entered into a separate License Agreement, that agreement is hereby incorporatedby reference and made part hereof, to the extent applicable. If any inconsistency shall exist between these Terms and Conditions and the separate License Agreement, the terms of the License Agreement shall prevail.
Entire Agreement: These Terms and Conditions representthe entire agreement betweenthe parties hereto, andthere are nounderstandings, representations, or warranties of any kind except those expressly set forth herein.