TERMS AND CONDITIONS OF SALE
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1 DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
“Additive” means any d2w pro-degradant and/or d2p anti-microbial and/or anti-fungal, and/or insecticide, and/or odour-adsorbing and/or flame-retardant and or/fragrance and/or anti-fouling additive or masterbatch, or d2t tagging or tracer, supplied or to be supplied to the Buyer as active ingredients, pellets, powders or liquids pursuant to a Contract with Symphony.
“Affiliate” means, in relation to a party, any entity or person that Controls, is Controlled by, or is under common Control with that party.
“Buyer” means the person(s), firm or company who purchases or orders Goods from Symphony
“Claim form” means the current edition of the Symphony’s prescribed form for claims, obtainable from Symphony on request.
“Confidential Information” means:
disclosed by or on behalf of a Party and whether made available in writing, in disk or electronic form or orally.
“Control” means direct or indirect beneficial ownership of 50% (or, outside a party’s home territory, such lesser percentage as is the maximum, permitted level of foreign investment) or more of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of that party, as the case may be;
“Contract” means any contract between Symphony and the Buyer for the sale and purchase of Goods which includes these Conditions or incorporates them by reference;
“Delivery” is the point at which title and risk in the Goods passes in accordance with the relevant INCOTERM
“Goods” means Additive and any other goods (including any part or parts of them) supplied or to be supplied to the Buyer by Symphony pursuant to the Contract;
“INCOTERM” or “INCOTERMS” means terms specified in Incoterms 2010 (or any amendment or replacement thereof) published by the International Chamber of Commerce. If an INCOTERM is inconsistent with these conditions then these conditions shall prevail.
“Intellectual Property” means any patent, copyright, design right, trade mark or any other form of intellectual property right (whether registered or unregistered), any application (or the right to apply) for such intellectual property right, and any rights in relation to intellectual property rights and/or in relation to trade names, company names, domain names and any rights in respect of trade secrets and/or confidential information;
“Order” means a written or oral request for the supply of Goods
“Party” Symphony, the Buyer or an Affiliate
“Price” means the sum charged for the goods, exclusive of freight, insurance, taxes or other charges.
“Related Person” means a Party’s Affiliates, directors, employees, advisers, partners, agents, subcontractors and consultants
“Symphony” means Symphony Environmental Ltd
“Writing” or “Written” includes faxes and signed pdf attachments to e-mails, but not transient messages such as SMS, Skype, or Messenger
2 APPLICATION OF TERMS
2.1 Orders placed by the Buyer shall be deemed to be accepted by Symphony on these terms and Conditions when a written or e-mail acknowledgement is issued by Symphony stating that the Order is accepted, or Symphony sends the Goods to the Buyer or makes them available for collection by the Buyer.
2.2 Notwithstanding anything else contained in these Conditions, it is the Buyer’s responsibility to ensure that the Goods are suitable for the Buyer’s intended purpose and that all requirements for registration and all other laws in the place of delivery, and in the place where the Goods are to be used, sold, or supplied, are complied with
3 PURCHASE PRICE & TERMS OF PAYMENT
3.1 Symphony reserves the right to increase the agreed price for the goods in the event of an increase in the cost of raw materials, labour, overheads or other expenses of Symphony, or change in exchange rate after the Order but prior to the date of despatch. In such circumstances any increase shall be limited to 10%.
3.2 Any value added tax and other taxes and duties shall be paid by the Buyer unless otherwise agreed, or unless specified in any INCOTERM expressly incorporated in the Contract.
3.3 Unless otherwise agreed, the Buyer shall pay the price of the Goods by wire-transfer to Symphony’s nominated bank account at least five days before dispatch of the Goods is due.
3.4 If Symphony agrees to accept payment by Letter of Credit it shall be opened upon and confirmed by a UK bank at least 10 days before shipment or collection of the goods is due, and shall be payable at sight of Bill of Lading, or at sight of the equivalent document for road, rail, or air transport.
3.5 If the Buyer fails to make full payment on the due date then without prejudice to any other remedies Symphony shall be entitled to charge the Buyer interest on the amount unpaid at the rate of 2 per cent per calendar month until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest), together with a sum equivalent to any bank charges legal costs or other costs charges or expenses incurred by Symphony arising from the late payment of sums due from the Buyer.
4.1 Unless otherwise agreed, Goods are sold CIF (in the case of sea transport) or CIP (in the case of road or air transport) (as defined by INCOTERMS). The Buyer shall pay for transport from the port of arrival to the Buyer’s designated warehouse, but Symphony shall insure the goods from despatch from Symphony’s warehouse until arrival at the Buyer’s designated warehouse.
4.2 Symphony shall use reasonable endeavours to despatch the Goods to the Buyer so as to arrive on or before the delivery date (if any), specified in the Buyer’s order but any time or date agreed for despatch or delivery shall be an estimate only.
4.3 If the Buyer does not receive the Goods within 14 days of the date of the expected delivery of the goods as notified by Symphony, or within 21 days of the date of invoice if no such date has been notified, the Buyer must notify Symphony forthwith in writing. Otherwise the goods will be deemed to have been received.
4.4 If the Buyer fails to collect the Goods or refuses to accept delivery, the Goods shall be at the Buyer’s risk and the Buyer shall indemnify Symphony against all costs and expenses occasioned thereby, including insurance, carriage and storage costs.
4.5 Any liability of Symphony for late or non-delivery of the Goods shall be limited to delivering the outstanding Goods within a reasonable time or issuing a credit note at the pro rata Contract price of such outstanding Goods.
4.6 Symphony may:
4.6.1 deliver Goods within a 10% margin by weight or quantity of those specified. Weight shall include the weight of the package.
4.6.2 vary the shape, size, and colour of Additive granules.
4.7.1 vary the thickness of any virgin material that forms part of the Goods within a 10% margin of that specified.
4.7.2 vary the thickness of second grade or recycled materials that form part of the Goods within a twenty per cent margin of those specified
4.7.3 vary any specifications as to shade of the colour of the Goods (or part thereof) provided that the colour specified by the Buyer shall be delivered
4.7.4 vary any specifications as to size of the Goods (or part thereof) within a five per cent margin, whether larger or smaller
4.7.5 vary any specifications as to the contents of boxes or packs. There will be a five percent differential by quantity permitted in the case of low-content boxes or packs (i.e. those specified to contain less than 200 items), and a seven and a half percent differential permitted in the case of high-content boxes or packs, (i.e. those specified to contain 200 items or more)
4.9 Unless specified by the Buyer, the dynamic properties, odour, static, and other non-specified properties shall be in Symphony’s reasonable discretion.
4.10 Each delivery made hereunder shall be deemed to arise from a separate contract and may be invoiced separately. Any invoice for a delivery shall be payable in full in accordance with terms of payment provided for herein, without reference to and notwithstanding any defect or default in delivery of any other instalment.
5.1 The Buyer shall check the quantity of boxes or packs containing the Goods against the delivery-note or packing-list as the case may be at the time of delivery and provide written confirmation of receipt to the carrier, with a note recording any visible damage.
5.3 If the Goods are alleged to be defective the Buyer must retain a minimum of 90% of intact original boxes, sacks, rolls, bales or bundles for Symphony’s examination.
5.6 The Buyer acknowledges that the Buyer is aware that any failure to comply strictly with 5.1-5.5 may prevent Symphony from making a claim against Symphony’s supplier or against insurers.
5.7 Symphony accepts no liability for defective Goods where the Goods have been subjected to direct sunlight, or heat exceeding 30 degrees centigrade, or used later than the expiration date of the service-life specified by Symphony, or if Additive packaging has been opened or damaged and not kept in dry conditions, or in the case of Goods other than Additives, where such Goods have been cut, printed or otherwise fabricated or processed by the Buyer or any third party.
6.1 Property in the Goods shall not pass to the Buyer until they have been paid for in full.
6.2 Until property in the Goods passes to the Buyer the Buyer shall hold the Goods on a fiduciary basis as bailee for Symphony. The Buyer shall store the Goods (at no cost to Symphony) separately from all other goods in its possession, marked in such a way that they are clearly identified as Symphony’s property and in a shaded and dry environment so as to prevent any damage or deterioration.
6.3. Until such time as property in the Goods passes from Symphony to the Buyer, the Buyer shall upon request deliver up to Symphony such of the Goods as are in the possession and/or control of the Buyer. If the Buyer fails to do so this clause shall be construed as an irrevocable license granted to Symphony by the Buyer to enter premises owned and/or controlled by the Buyer and remove the Goods.
6.4 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of Symphony. Without prejudice to the other rights of Symphony, if the Buyer does so all sums whatever owing by the Buyer to Symphony shall forthwith become due and payable.
6.5. The Buyer shall insure the Goods and keep them insured to the full amount of the price payable for such Goods against ‘all risks’ to the reasonable satisfaction of Symphony from the time of physical delivery to the Buyer until the time that property in the Goods passes from Symphony if later, and shall whenever requested by Symphony produce a copy of the policy of insurance. Without prejudice to the other rights of Symphony, if the Buyer fails to do so all sums whatever owing by the Buyer to Symphony shall forthwith become due and payable.
6.6 In the event that:
Symphony may at its option (i) terminate the Contract and seek damages from the Buyer and/or (ii) refuse to make deliveries to the Buyer and/or (iii) stop any Goods in transit to the Buyer and/or (iv) take possession of the Goods with or without notice. This clause shall be construed as an irrevocable license granted to Symphony by the Buyer to enter premises owned and/or controlled by the Buyer and remove the Goods.
7 USE OF ADDITIVE
7.1 The Buyer acknowledges that Symphony shall not be obliged to supply Additive (whether for trials or otherwise) until Symphony has received a fully completed Technical Enquiry Form (“TEF”). A copy of the current edition of the TEF is available from Symphony on request. If there is any doubt as to the information required in the TEF, the Buyer shall refer to Symphony’s Technical Department. The Buyer shall arrange for documents to be translated if necessary.
7.2 On receipt of a properly completed TEF Symphony will propose a particular grade of Additive and supply it in trial quantity subject to these Conditions. Symphony shall include any relevant technical data sheets and manufacturing instructions along with each supply of Additives. The Buyer agrees that it shall not use any Additive until it has received from Symphony notification of the grade of Additive to be used for each application together with technical data sheets and manufacturing instructions.
7.3 The Buyer will then carry out a trial before commercial production, in accordance with Symphony’s manufacturing instructions.
7.4 The Buyer agrees that:
7.4.1 the Buyer will examine the Additive before incorporation into products and will report to Symphony any apparent defect before use.
7.4.2 the Additive will be used at first for small-scale trial runs only and samples from the trial runs will be submitted forthwith to Symphony for testing, together with control samples made with polymer and other ingredients from the same batch but not containing Additive.
7.4.3 no articles produced during trial runs will be supplied to a third party without a prior written acknowledgement signed by such third party that such articles are experimental, that they are supplied without any warranty or guarantee, and that such experimental articles shall not bear Symphony’s name, nor the name any of its Affiliates, nor any of Symphony’s Trademarks.
7.4.4 in the case of Additives (and information relating thereto) supplied for the purpose of trials, such Additives and information are provided on an “as is” basis. Symphony expressly excludes all warranties, representations, guarantees or assurances of any kind, express or implied, including any warranty that any information is complete and/or accurate or that the Additives, or any articles produced using the Additives and/or information, are commercially viable, safe, of satisfactory quality, fit for purpose or free from infringement of any third party rights.
7.4.5 commercial production will not commence until the Buyer receives written confirmation signed by Symphony that testing of the samples provided to Symphony has been satisfactory and that commercial production is appropriate. Thereupon Symphony will warrant that the Additive will meet the stated objectives as expressly set out in the Technical Data Sheet(s) supplied by the Buyer, provided that such Additives are used in accordance with the relevant manufacturing instructions and technical data sheets and provided that any data supplied on the TEF has not been changed. Any Additives not conforming to this warranty (and which are promptly returned to Symphony at Symphony’s expense) shall be replaced by Symphony without charge.
7.4.6 The Buyer shall not otherwise commission any trials or testing, nor submit samples or information to any laboratory without the written consent of Symphony.
7.4.7 The Buyer will not sell or supply or transfer the Additive to any other person without the written consent of Symphony.
7.5 The batch number of the Additive shall be recorded and samples of products shall be kept, in respect of each test run and production run, and shall be produced to Symphony in the event of any claim. If such data is not produced Symphony shall not be bound to deal with the claim.
7.6 The Buyer agrees that any permitted supplies of Additives to its own customers or sub-distributors can be made only if the customer or sub-distributor of the Buyer accepts these Conditions of Sale and has signed a Confidentiality Agreement approved by Symphony.
8 WARRANTIES AND LIABILITIES
8.1 Symphony warrants that upon payment for Goods the Buyer shall acquire a clear title thereto free from all encumbrances.
If Symphony shall be unable to perform any of its obligations hereunder by reason of fire, explosion, war, riot, malicious damage, theft, strike, lock-out or trade dispute (whether or not involving Symphony’s or the Buyer’s employees), shortage or non-availability of materials or any other act, omission or state of affairs whether or not of a like nature which is beyond Symphony’s reasonable control then Symphony shall be relieved of the obligations incurred under this contract to the extent that the fulfilment of such obligations is prevented frustrated impeded or delayed as a consequence of any such event.
10 OBLIGATIONS OF CONFIDENTIALITY
10.1 The Buyer shall:
10.1.1 use Confidential Information and Additive supplied by Symphony for the purposes contemplated by the Contract incorporating these conditions and for no other purpose whatsoever;
10.1.2 treat and safeguard all Confidential Information as private and confidential;
10.1.3 ensure proper and secure storage of all Confidential Information and the Additive;
10.1.4.1 disclose or reveal the Confidential Information to any other person or party whatsoever, other than Related Persons of the Buyer on a need to know basis whose duties necessitate the receipt and consideration of the same and who are aware of the obligations of the Buyer under this Agreement and who are bound by obligations of confidentiality and non-use at least as onerous as those as are contained in this Agreement and which apply to the Confidential Information;
10.1.4.2 discuss, correspond or have any other contact in respect of the Confidential Information with any person who is not Symphony or a Related Person of Symphony;
10.1.4.3 use any information received from Symphony or any Related Person of Symphony for any activity other than as permitted herein and in particular shall not use the Confidential Information or Goods for the purpose of competition with or circumvention of Symphony;
10.1.4.4 analyse or reproduce or develop or simulate the Confidential Information or the Additive;
10.1.4.5 supply additive (as distinct from goods made with the Additive) to any third party on its own behalf or on behalf of others.
10.2 The Buyer shall be responsible for compliance by the Buyer’s Related Persons of the obligations set out in this Agreement and any breach of such obligations by the Buyer’s Related Persons shall be deemed to be a breach by the Buyer of its obligations under this Agreement.
10.3 The provisions of this clause 10 shall continue in force notwithstanding the completion or expiry of any Contract.
11 LICENCE OF INTELLECTUAL PROPERTY
11.1 Symphony hereby grants to the Buyer a non-exclusive licence to use Symphony’s relevant Trade Marks on Goods and on articles manufactured using the Goods provided such articles are properly manufactured in accordance with the manufacturing instructions and technical data sheet, and in accordance with information provided on the Technical Enquiry Form. Notwithstanding the foregoing, Symphony gives no representation or warranty that any such Trade Marks may lawfully be used in any country, and Symphony is not bound to indemnify the Buyer or the Buyer’s customers in respect of any claim arising out of the use of such Trade Marks.
11.2 The Buyer shall procure so far as possible that articles made using any Goods shall bear the Trade Mark corresponding to such Goods together with any words specified in any style guides as provided by Symphony from time to time.
11.3 The Buyer shall consult with Symphony to ensure so far as possible that the wording or graphics on any label or advertising or website does not contravene any green claims code or any legal requirements, regulation and/or best practice guidelines that apply to any of the Goods (or articles incorporating the Goods) that have been prescribed by any relevant legal, regulatory or industry association. The Buyer acknowledges nevertheless that Symphony are not experts in laws, and any advice which Symphony may give on such matters is given without legal responsibility. The fact that Symphony may have made or authorised wording or graphics on any label or advertising or website is not a representation that the same may be used by the Buyer. The Buyer should consult its own lawyer practising in the place where the Goods are to be sold or used.
11.4. The Buyer shall provide Symphony with samples of any articles on which any Symphony Trade Mark appears no less frequently than every 6 months, and prior to the launch of any new or modified article on which any such Trade Mark appears.
11.5 The Buyer shall not except as provided herein:
11.5.1. use or permit the use of any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill connected to the Trade Marks or the Goods;
11.5.2. use or apply to register any trademarks or trade names or company names or domain names so resembling any trade mark or trade name or company name or domain name belonging to Symphony (or any of its Affiliates) as to be likely to cause confusion or deception. If nevertheless the Buyer applies for or obtains or has applied for or obtained any such mark or name, it shall hold the same on trust for Symphony and shall on written request by Symphony, execute an assignment thereof without payment in such form as Symphony may specify.
11.6 Except as otherwise provided in these Conditions, the Buyer shall have no rights in respect of any trade names, company names, domain names or Trade Marks used by Symphony in relation to the Goods or of the goodwill associated with them, or any other Intellectual Property of Symphony in respect of the Goods, which shall remain vested in Symphony. Any goodwill in such names or marks which the Buyer derives by use thereof, or by being connected with Symphony in the course of trade (whether arising at common law or otherwise), shall accrue to Symphony, and the Buyer shall (on expiry or termination of this Agreement) at Symphony’s request assign the same, with all rights of action then accrued, to Symphony without payment.
11.7 The Buyer warrants that it shall not, and shall procure that its Related Persons shall not, represent that it has any title to or right of ownership in Symphony’s trademarks or other Intellectual Property of Symphony, and shall promptly notify Symphony of any actual or threatened infringement of any such Intellectual Property Rights as may come to the attention of the Buyer.
12 ENTIRE AGREEMENT
12.1 These conditions of sale shall prevail notwithstanding any apparent variation of these terms and conditions (save in the manner specified in clause 13.1 below) by any proposal, quotation or other representation or statement made or given by Symphony or its employees, agents Distributors or representatives and notwithstanding any conflict between the terms of this agreement and the terms of any order or communication submitted by the Buyer in respect of the Goods.
13.1 No waiver, cancellation or alteration of the provisions of the Contract or these terms and conditions shall be valid unless made in writing and signed by a Director of Symphony.
13.2 The Contract shall be construed and enforced in accordance with the laws of England
13.3 Each right or remedy of Symphony under the Contract is without prejudice to any other right or remedy of Symphony whether under the Contract or not.
13.4 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent only of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.5 Failure or delay by Symphony in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.6 Any waiver by Symphony of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.7 Unless otherwise specified by Symphony the currency of the contract shall be United States dollars.
13.8 This agreement is not intended to confer any rights on an entity not a party to it.
14.1 All communications between the parties about this Contract must be in writing in the English language and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission or as a pdf attachment to an email:
14.1.1 in case of communications to Symphony – to its registered office or such address as shall be notified to the Buyer by Symphony; or
14.1.2 in the case of communications to the Buyer to the registered office of the Buyer or to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall have been notified to Symphony by the Buyer.
14.2 Communications shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, 5 days (excluding Saturdays, Sundays and UK bank and public holidays) after posting (exclusive of the day of posting);
14.2.2 if delivered by hand, on the day of delivery;
14.2.3 if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission at the location of the recipient and otherwise on the next working day.
14.2.4 if sent as a signed pdf attachment to an e-mail, on the day on which the e-mail was sent provided that a failure-to-deliver notice was not returned.
14.3 Communications addressed to Symphony shall be marked for the attention of the Company Secretary.