In these conditions of sale (”Conditions”) “ANP” means the Anpario Company* with whom the order is placed by the Customer, “Customer” means the buyer of the goods, “Goods” means the goods ordered by the Customer and “Price” means the price specified by ANP for the Goods.
1. Application of these Conditions
1.1 These Conditions form the contract (“Contract”) between ANP and the Customer for the supply of the Goods and they supersede any previously issued terms and conditions of purchase or supply.
1.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract.
1.3 No variation of these Conditions shall be binding unless agreed in writing and signed by a duly authorised signatory on behalf of both the Customer and ANP.
1.4 Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.
2.1 Each order (“Order”) placed by the Customer shall be an offer to purchase the Goods subject to these Conditions.
2.2 If ANP is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.
2.3 ANP may accept or reject an Order at its discretion and an Order shall not be accepted, and no binding obligation to supply any goods shall arise, until ANP has delivered a written acceptance of the Order.
2.4 ANP may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Goods and are incapable of being accepted by the Customer.
3. Product Quality and Packaging
3.1 Anpario will (i) manufacture the Goods in accordance with its specification,(ii) use reasonable care and skill in the manufacture and supply of the Goods, (iii) supply the Goods in packaging appropriate for the Goods; and (iv) provide to the Customer at or around the time of the first delivery of the Goods to the Customer safety information in the form of ‘Safety Data Sheets’ (“SDS”). Otherwise, an SDS will only be provided if requested by the Customer or if ANP makes a material change to the content of an SDS.
4.1 The price (“Price”) is as set out in the Order or, where no such provision is set out, shall be ANP’s list price from time to time.
4.2 The Price (unless the Customer is notified otherwise) is inclusive of packaging and exclusive of (i) delivery, insurance, shipping carriage, and all other related charges, customs handling charges, duties or taxes which shall be charged in addition to the Price and (ii) VAT.
4.3 The Customer shall pay any applicable taxes including value added tax or any goods or sales taxes goods to ANP on receipt of a valid VAT
4.4 ANP may at any time up to 14 business days prior to delivery increase the Price by notice in writing to the Customer. In such event the Customer may no later than 7 business days after receipt of such notice cancel the Order.
5.1 ANP shall invoice the Customer for the Goods, partially or in full, at any time following acceptance of an Order.
5.2 The Customer shall pay all invoices (i) in full without deduction or set-off, in cleared funds as provided on ANP’s invoice and (ii) to the bank account nominated by ANP. If the Customer makes a payment to any other bank account for any reason whatsoever including but without limitation fraudulent activity it will remain liable to pay ANP.
5.3 Where payment is not made by the due date (i) ANP may, without limiting its other rights, charge interest on such sums at the rate of 3% per annum above the Bank of England base rate from time to time in force and (ii) interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
6. Delivery and Performance
6.1 Delivery shall take place when the Goods have been delivered to the location (“Location”) specified in the Order or when collected by the Customer.
6.2 The Customer shall not be entitled to reject delivery of the Goods on the basis that an incorrect volume of the Goods has been. Should ANP deliver against any Order an excess or deficiency of up to ten (10) per cent of the quantity ordered it will have no liability whatsoever except that the Price shall be adjusted accordingly.
6.3 ANP may deliver the Goods in instalments and any delay in the delivery of an instalment shall not entitle the Customer to cancel any other instalment.
6.4 Time is not of the essence in relation to the delivery of the goods and although ANP shall use its reasonable endeavours to meet estimated dates for delivery such dates are indicative only.
6.5 ANP shall not be liable for any delay in, or failure of, delivery caused by (i) the Customer’s failure to provide access to or suitably prepare the Location, (ii) the Customer’s failure to provide adequate instructions for delivery; or (iii) a Force Majeure Event as defined in clause 11 below.
6.6 If the Customer fails to accept or take delivery of the Goods ANP shall store and insure the Goods pending delivery and the Customer shall pay all storage and insurance charges at ANP’s then applicable rates and all other costs and expenses incurred by ANP in doing so.
6.7 If 7 business days following the due date for Delivery the Customer has not taken delivery of, nor collected, the Goods ANP may resell or otherwise dispose of the Goods without any obligation or liability to the Customer.
7. Damage and/or Loss in Transit
7.1 The Customer may reject any Goods which do not meet the requirements of clause 3 provided that written notice of rejection is given to ANP no later than 5:00 p.m. 14 business day’s following Delivery or, in the case of a latent defect, no later than 5:00 p.m. 14 business days following the date of discovery of the defect provided further that the right to reject the Goods shall cease immediately if (i) the Customer sells or uses the Goods in any way after giving a notice of rejection (ii) the defect is due to ANP having followed instruction, design, drawing or specification provided by the Customer or (iii) the defect is due to repair, alteration, misuse, neglect, storage conditions, operating conditions or results from fair wear and tear.
7.2 If the Customer rejects the Goods pursuant to clause 7.1. ANP’s liability shall be limited (in its discretion) to replacing the Goods or refunding the Price.
7.3 If the Customer fails to reject defective Goods within the time allowed by clause 7.1 it shall be deemed to have accepted the Goods.
Risk in the Goods shall pass to the Customer as provided in the Incoterms 2020.
9.1 Title to the Goods shall pass to the Customer once ANP has received payment in full and cleared funds for the Goods.
9.2 Until title to the Goods has passed to the Customer it shall (i) hold the Goods as bailee for ANP, (ii) store the Goods separately from all other material in the Customer’s possession (iii) take all reasonable care of the Goods and keep them in the condition in which they were delivered, (iv) insure the Goods from the date of delivery with a reputable insurer, against all risks, for an amount at least equal to their Price, and noting ANP’s interest on the policy of insurance, (v) ensure that the Goods are clearly identifiable as belonging to ANP, (vi) not remove nor alter any trade mark on the Goods or their packaging, (vii) inform ANP immediately if it is unable to pay its debts or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of its assets, enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction; and (viii) on reasonable notice permit ANP to inspect the Goods during the Customer’s normal business hours and provide ANP with such information concerning the Goods as ANP may request from time to time.
9.3 Notwithstanding clause 2, the Customer may use or resell the Goods in the ordinary course of its business and if the Customer resells the Goods in the ordinary course of its business, title to the Goods shall pass to the Customer immediately prior to the resale.
ANP shall in respect of all amounts due from the Customer under this or any other contract have a general lien on all property of the Customer in its possession (even where such property is Goods which have been paid for) and shall after the expiration of fourteen (14) days written notice to the Customer be entitled to dispose of such property as it deems fit and apply the proceeds toward the discharge of any amount due.
11. Force Majeure Event
11.1 If either party is prevented, hindered or delayed from or in performing any of its obligations by a Force Majeure Event (being any event which is beyond the reasonable control of the parties and which affects the party’s performance, including acts of God, war, terrorism, fire, and natural disasters, epidemic or pandemic) then:
11.1.1 that party’s obligations under the Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent that party is so prevented, hindered or delayed;
11.1.2 as soon as reasonably possible after commencement of the Force Majeure Event the party prevented, hindered or delayed from fulfilling its obligations shall notify the other of the occurrence of the Force Majeure Event, the date of commencement of the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement (i) the party prevented, hindered or delayed from fulfilling its obligations by a Force Majeure Event shall use all reasonable efforts to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement and (ii) as soon as reasonably practicable after the cessation of the Force Majeure Event the party prevented, hindered or delayed from fulfilling its obligations shall notify the other in writing of the cessation of the Force Majeure Event and shall resume performance of its obligations.
12. Customers Obligations
12.1 The Customer shall store the Goods in accordance with the storage instructions set out in the SDS.
12.2 The Customer acknowledges that the Goods are safe whilst stored and used in accordance with the SDS and that where the Goods are stored or used other than in accordance with the SDS they may deteriorate or become unstable.
12.3 The Customer must take all reasonable measures to store and use the Goods properly following the instructions in the SDS or otherwise notified to the Customer by the ANP.
12.4 The Customer warrants that it has complied, and will continue to comply, with all regulatory, legal and other requirements in relation to the purchase, transport, storage use and sale of the Goods.
12.5 Neither the Customer nor any person on its behalf shall (i) blend, adulterate or re-package the Goods without ANP’s prior written consent, (ii) examine, experiment upon, analyse or reverse engineer the Goods, (iii) copy or reproduce the Goods or components, or combine the Goods or components of the Goods with other substances or materials or create new products using the Goods or components of the Goods, or (iv) alter, change or otherwise tamper with the Goods.
Anpario operates its business with integrity and in an honest and ethical manner. It seeks to ensure a sustainable business, behaving socially, ethically and in an environmentally responsible manner. It is Anpario’s aim to work with business partners who share its goals and values and expects its business partners to operate with regard to the environmental, social and anti-bribery policies displayed on its web site: www.anpario.com.
14. Limitation of Liability
14.1 The entire liability of the parties to each other (including liability for the acts or omissions of their respective employees, agents and sub-contractors) under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 14.
14.2 Neither party limits nor excludes its liability for (i) death or personal injury caused by its negligence, (ii) fraud; or (iii) fraudulent misrepresentation.
14.3 Subject to clause 14.2 (i) Anpario’s total aggregate liability in respect of all losses, whether arising from contract, tort (including negligence) or otherwise under or in connection with this Agreement shall in no event exceed the Price paid by Customer to Anpario for the Order or Orders giving rise to the losses, and (ii) Anpario shall not be liable to Customer for (a) any indirect, special or consequential loss or damage, (b) loss of profit, (c) loss of or corruption to data, (d) loss of use, (e) loss of production, (f) loss of contract, (g) loss of opportunity, (h) loss of savings, discount or rebate (whether actual or anticipated) or (i) harm to reputation or loss of goodwill.
The Customer shall indemnify ANP in respect of all damage or injury occurring to any person, firm, company or property and against all actions, suits, claims and demands, charges or expenses in connection therewith for which ANP may become liable in respect of the Goods in the event that the damage or injury shall have been occasioned otherwise than by the negligence of ANP.
ANP reserves the right (without prejudice to its other rights and remedies) either to terminate the Contract or to suspend further deliveries to the Customer or require payment in advance in the event that the Customer fails to pay for any one delivery when it becomes due, or the Customer’s financial situation becomes unsatisfactory to ANP.
17. Law and Jurisdiction
The Contract shall be construed and applied in accordance with the laws of England and Wales and the Customer agrees that the courts of England and Wales shall have exclusive jurisdiction in any dispute relating to the Contract. This clause shall not prevent the ANP from bringing proceedings in the courts of any jurisdiction.
ADDITIONAL TERMS IF THE GOODS ARE RE-SOLD BY THE CUSTOMER
18.1 Each Party shall immediately notify the other if it becomes aware of any complaint or claim which indicates the Goods may be defective, faulty or unsafe in any way.
18.2 If ANP is notifying the Customer, it shall send to the Customer details of: (i) the safety issue, (ii) the Goods which are, or may, be affected and (iii) the quantities and dates of sale of such Goods including purchase order numbers sufficient to allow the Customer to identify each order.
18.3 If the Customer is notifying ANP it shall, upon receipt of any complaint or claim send to ANP (i) a copy of the claim or complaint and any correspondence exchanged with the complainant or third party and (ii) details of the Goods supplied, the batch number and the date on which the Goods were supplied by, and the date on which ANP supplied the Goods to the complainant (or other third party).
18.4 The Customer shall keep and maintain appropriate records to enable all Goods to be traced. These records shall include batch numbers, delivery dates and details of the party who purchased the Goods from the Customer. The records which are kept must be sufficiently thorough to allow a recall of the Goods or corrective action to be effectively and efficiently implemented by ANP.
18.5 The Customer shall provide ANP with the assistance and information that it may reasonably require in order to implement a recall or corrective action. This assistance shall include the provision of any information which may be required to allow ANP to identify third parties who purchased affected Goods.
18.6 At ANP’s request the Customer shall immediately cease delivering and distributing any Goods specified by ANP and shall place these Goods into quarantine until ANP confirms whether they should be returned to it or whether they are suitable for use or onward sale.
18.7 The Customer shall not implement nor initiate any recall or corrective action without ANP’s prior express consent unless it is directed to do so by a relevant regulatory authority. In the event the Customer does implement or initiate any recall or corrective action upon the direction of a relevant regulatory authority it will provide ANP with written confirmation of the steps it is taking.
19. Product Liability Insurance
19.1 The Customer shall maintain at its own expense product liability insurance in such amount as may be adequate to protect itself and ANP against any and all claims, actions, losses or damages arising out of any actual or alleged defects in the Goods.
19.2 The product liability insurance must be from a reputable recognised insurance company and the Customer will provide a copy of the insurance policy to ANP upon request.
20. Product Re-sale and Use
20.1 The Customer shall provide the SDS and other product information provided to it by ANP to any persons to whom it supplies the Goods by way of sale or otherwise and ensure any such person is aware they must not (i) blend, adulterate or re-package the Goods without ANP’s prior written consent, (ii) examine, experiment upon, analyse or reverse engineer the Goods, (iii) copy or reproduce the Goods or components, or combine the Goods or components of the Goods with other substances or materials or create new products using the Goods or components of the Goods; or (iv) alter, change or otherwise tamper with the Goods.
*Anpario Company” means Anpario plc. or any undertaking which from time to time is a parent undertaking of Anpario plc. or a subsidiary of Anpario plc. or of any such parent undertaking where ‘subsidiary undertaking’ and ‘parent undertaking’ have the meanings given to them in section 1162 of the Companies Act 2006, or any holding company of Anpario plc and any subsidiary of Anpario plc or of any such holding company from time to time each as defined by section 1159 of the Companies Act 2006