Terms & Conditions of Sale
1.INTERPRETATION
In These Conditions:
1.1. ‘BUYER’ means the company described in the applicable Order which has been accepted by the Seller.
1.2. ‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
1.3. ‘CONTRACT’ means the contract for the purchase and sale of the Goods which is comprised of the applicable Order together with these Conditions.
1.4. ‘GOODS’ means the goods (including any instalment of the goods or any parts for them) specified in the Order which the Seller is to supply in accordance with these Conditions.
1.5. ‘ORDER’ means the Order form once executed by both the Buyer and the Seller.
1.6. ‘SELLER’ means KYMIRA Ltd (Company number 08490805).
1.7. ‘WRITING’ includes email: info@kymira.com, or your relevant account manager.
1.8. Any reference in these Conditions to any provision of a statute, regulation or order shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.9. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF SALE
2.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with the applicable Order, subject to these Conditions, which shall govern the Contract to the exclusion of any other terms proposed by the Buyer.
2.2. No variation to the Contract shall be binding unless agreed in Writing by the authorised representatives of the Buyer and the Seller.
2.3. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.
2.4. Nothing in these Conditions shall affect the liability of either party for fraudulent misrepresentation.
2.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. ORDERS AND SPECIFICATIONS
3.1. No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless signed acknowledged in writing.
3.2. Each Order shall be deemed to be a separate offer by the Buyer to purchase Goods on the terms of this Contract, which the Seller shall be free to accept or decline at its absolute discretion.
3.3. The Buyer shall be responsible for ensuring the accuracy of the details of any Order including any applicable specification submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.4. The Buyer confirms that the information given by the Buyer to the Seller is accurate and correct to the best of its knowledge. The Buyer gives permission for the Seller to contact trade references and/or credit agencies with a view to obtain appropriate credit insurance.
3.5. The quantity, quality and description of and any specification for the Goods shall be those set out in the Order.
3.6. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.7. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable statutory requirements or, where the Goods are to be altered in accordance with the Buyer’s specification, such changes or alterations shall not materially affect the quality or performance of the Goods.
3.8. The Buyer may within 24 hours of placing an Order, amend or cancel an Order by written notice to the Seller. If the Buyer amends or cancels an Order, its liability to the Seller shall be limited to payment to the Seller of all costs reasonably incurred by the Seller in fulfilling the Order up until the date of deemed receipt of the amendment or cancellation.
4. PRICE OF THE GOODS
4.1. The price of the Goods shall be the price set out in the Order, save that the price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.2. The price of the Goods are exclusive of the costs of packaging, insurance and carriage of the Goods, which shall be paid by the Buyer and are specifically referenced in the Order.
5. TERMS OF PAYMENT
5.1. The Seller shall be entitled to invoice the Buyer for the price of the Goods at any time after the Order has been duly executed by both Parties.
5.2. The Buyer shall pay the price of the Goods (free from any right of set-off, counterclaim, withholding or deduction of any kind, those rights being expressly excluded) on or before the date as stipulated on the applicable invoice unless expressed to the contrary in Writing by the Seller, notwithstanding that delivery may not have taken place and the title in the Goods may not have passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment shall only be issued upon request.
5.3. If the Buyer fails to make any payment on the due date and remains in default not less than 14 days after being notified in writing to make such payment then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1. Suspend any further deliveries to the Buyer.
5.3.2. Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3. Charge the Buyer interest (both before and after any Judgment) on the amount unpaid, at the rate of 8% per cent per annum above Bank of England base rate compaunding daily until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest. All costs, charges and expenses incurred by the Seller in recovering any debts are to be paid by the Buyer on a full indemnity basis. The Seller shall be entitled to charge (in addition to interest and any legal costs ordered by the Court and without prejudice to any rights or remedies available to the Seller) the sum of £1000.00 plus VAT or 10% of the total debt, whichever is the greater, by way of liquidated damages and as a contribution to administrative costs incurred by the Seller in taking steps to secure payment.
6. DELIVERY
6.1. Delivery of the Goods shall be made to the Delivery Location specified in the Order at any time after the Seller has notified the Buyer that the Goods are ready.
6.2. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the delivery date upon giving reasonable notice to the Buyer.
6.3. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4. If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions which prevent the Seller from delivering the Goods (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) or storage; or
6.5.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.
6.6. Any shortfall in the number of Goods delivered shall (whether or not delivery is refused) be notified by the Buyer to the Seller in writing within 48 hours from the time of delivery (or, in the case of delivery being effected by the Buyer collecting the Goods at the Seller’s premises, within 48 hours from the time of collection). Where the Buyer fails to notify the Seller accordingly, the Seller shall be deemed to have supplied the Goods in accordance with the quantities specified in the Contract, and shall have no liability to the Buyer in respect of any such shortfall.
6.7. If the Goods have not been delivered despite receipt by the Buyer of the invoice from the Seller relating to such Goods, then unless the Buyer notifies the Seller within 7 days after the date of such invoice, no claim against the Seller may be made in respect of non-delivery of such Goods.
7. ACCEPTANCE AND REJECTION OF THE GOODS
7.1. The Buyer may reject any Goods delivered to it that do not comply with clause 9.1, provided that:
7.1.1 The Buyer notifies the Seller in writing of rejection, quoting a valid returns number:
(a) in the case of a defect that is apparent on normal visual inspection, within five days of delivery;
(b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent; and
(c) none of the events listed in clause 7.3 apply.
7.2 If the Buyer fails to give notice of rejection in accordance with clause 7.1, it shall be deemed to have accepted such Goods.
7.3 The Seller shall not be liable for Goods’ failure to comply with the warranty set out in clause 9.1 in any of the following events:
7.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 7.1;
7.3.2 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
7.3.3 the defect arises as a result of parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of such warranty or guarantee as may be given by the manufacturer to the Seller;
7.3.4 the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Buyer;
7.3.5 the Buyer alters or repairs such Goods without the written consent of the Seller;
7.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.3.7 the Goods differ from their description or the specification detailed in the Order as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4 If the Buyer rejects Goods under clause 7.1 then the Buyer shall be entitled to:
7.4.1 require the Seller to repair or replace the rejected Goods; or
7.4.2 require the Seller to repay the price of the rejected Goods in full.
7.5 Once the Seller has complied with the Buyer’s request, it shall have no further liability to the Buyer in respect of the rejected Goods’ failure to comply with clause 7.3.
7.6 The terms of this agreement shall apply to any repaired or replacement Goods supplied by the Seller.
8. RISK AND PROPERTY
8.1 The risk in the Goods shall pass to the Buyer when the Goods leave the Seller’s premises for the purpose of delivery.
8.2 Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for such Goods due to the Seller from the Buyer for sales of the Goods, in which case title to such Goods shall pass at the time of payment; and
8.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
8.3.1 store such Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
8.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to such Goods; and 8.3.3 maintain such Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks with an insurer that is reasonably acceptable to the Seller. The Buyer shall obtain an endorsement of the Seller’s interest in the Goods on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Buyer shall allow the Seller to inspect such Goods and the insurance policy.
8.4 If before title to the Goods passes to the Buyer, the Buyer:
8.4.1 fails to pay any undisputed amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
8.4.2 commits a material breach of any other term of this Contract;
8.4.3 suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
8.4.4 makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
8.4.5 the Buyer ceases, or threatens to cease, to carry on business; or
8.4.6 the Seller reasonably apprehends that any of the events mentioned in clause 7.3.6 – 7.3.8 are about to occur in relation to the Buyer and has notified the Buyer accordingly then, without limiting any other right or remedy the Seller may have the Seller may at any time:
(a) require the Buyer to deliver up all Goods in its possession; and
(b) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the relevant Goods are stored in order to recover them.
9. WARRANTIES AND LIABILITIES
9.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of one month from delivery or unless stated otherwise in Writing.9.2 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control, including but not limited to;
(a) Act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery;(g) power failure or breakdown in machinery.
9.3 The Seller’s total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the Contract price for the applicable Order.
10. RIGHTS TO PUBLICISE
10.1 The Seller has the right to publicise the sale to the Buyer as appropriate. Including the use of the Buyer’s name and logos.
11. EXPORT TERMS
11.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms and these Conditions, the latter shall prevail.
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
11.4 The Buyer shall be responsible for arranging testing and inspection of the Goods at the Seller’s premises before shipment if deemed necessary by the Buyer. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or in respect of any damage during transit.
12. GENERAL
12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principle place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other person.
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.4 The Contract shall be governed by the laws of England and Wales, and the parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
12.5 The Buyer hereby agrees and undertakes that it shall not induce or attempt to persuade directly or indirectly any employee of the Seller or any of its subsidiary or associated companies to leave his/her employment.
13. CONFIDENTIALITY
13.1 All details of communications in connection with any contract or intended contract shall be regarded as strictly confidential and shall not be divulged to any person, firm or company without the Seller’s prior written consent.