Heraeus Conamic UK Ltd. – Standard Terms and Conditions of Sale 2017-02
1.
DEFINITIONS AND EXPLANATION
1.1.
In these conditions:"Buyer" means the person who accepts a quotation of the Seller for the sale of the Goods
or whose order for the Goods is accepted by the Seller;"Conditions" means the standard terms and conditions of sale set out in this documentand (unless the context otherwise requires) includes any special terms and conditions
agreed in writing between the Buyer and the Seller;"Contract" means the Contract for the purchase and sale of the Goods in accordance withthese Conditions;“Force Majeure Event” has the meaning given in Clause 8.9;
"Goods" means the goods (including any instalment of the goods or any parts for them)which the Seller is to supply in accordance with these Conditions;"Order" the Buyer’s order for the goods as set out in the Buyer’s purchase order form orin the Buyer’s written acceptance of the Seller’s quotation;"Seller" means Heraeus Conamic UK Ltd., (whose registered office is at Neptune Road,
Wallsend, Tyne and Wear, NE28 6DD) or any of its subsidiaries or subsidiary undertakings as defined by Section 1159 Companies Act 2006;"Writing" includes facsimile and emails and comparable means of communication.
1.2.
Any reference in these Conditions to any provision of a statute shall be construed
as a reference to that provision as amended, re-enacted or extended at the relevant timea reference to a statute or statutory provision includes any subordinate legislation madeunder that statute or statutory provision, as amended or re-enacted.
1.3.
A person includes a natural person, corporate or unincorporated body (whether
or not having separate legal personality).
1.4.
The headings in these Conditions are for convenience only and shall not affecttheir interpretation.
2.
BASIS OF THE SALE
2.1.
The Seller shall sell and the Buyer shall purchase the Goods in accordance with
any Order, which is accepted by the Seller, by the issue of a purchase acknowledgement.
No Contract will arise between the Buyer and the Seller until such purchase acknowledgement is issued. All Goods are supplied subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2.
It is a condition of this Contract and the supply of Goods that any Goods suppliedby the Seller must not in any circumstances be used where their failure could directlyendanger life.
2.3.
No variation to these Conditions shall be binding unless agreed in writing between
the authorised representatives of the Buyer and of the Seller.
2.4.
The Contract constitutes the entire agreement between the parties. The Buyer
acknowledges that it is not relying on any statement, promise or representation made or
given by or on behalf of the Seller, which is not set out in the Contract, or given in Writingin accordance with Clause 2.5. Any samples, drawings, descriptive matter, or advertising
issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or broachers are issued or published for the sole purpose of giving an approximate
idea of the Goods described in them. They shall not form part of the Contract or any othercontract between the Seller and the Buyer for the sale of the Goods.
2.5.
Any advice or recommendation given by the Seller or its employees or agents to
the Buyer or its employees or agents as to the storage, application or use of the Goods
which is not obtained in Writing from an employee or agent authorised by the Managing
Director of the Seller (a list of such employees or agents are available on request) isfollowed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shallnot be liable for any such advice or recommendation which is not so confirmed.
2.6.
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.
2.7.
All industrial or intellectual property rights of any nature whatsoever in the Goods
remain vested in the Seller at all times.
3.
ORDERS AND SPECIFICATIONS
3.1.
The Buyer shall be responsible to the Seller for ensuring the accuracy of the termsof 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 toenable the Seller to perform the Contract in accordance with its terms.
3.2.
The quantity, quality and description of and any specification for the Goods shallbe those set out in the Seller's purchase acknowledgement.
3.3.
If the Goods are to be manufactured or any process is to be applied to the Goodsby the Seller in accordance with a specification submitted by the Buyer, or utilising tooling,
software or other goods or equipment supplied 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 or use of such tooling, software or other goods or equipment.
3.4.
The Seller reserves the right to make any changes in the specification of theGoods which are required to conform to any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller's specification, which do notmaterially affect their quality or performance.
3.5.
Save as set out in Clause 4 below no order which has been accepted by the Seller
may be cancelled by the Buyer except with the prior agreement in Writing of the Seller
and on terms that the Buyer shall indemnify the Seller in full against all loss (including
loss of profit), costs (including the cost of all labour and materials used), damages,
charges and expenses incurred by the Seller as a result of cancellation.
4.
PRICE OF THE GOODS
4.1.
The price of the Goods shall be as per the Seller's purchase acknowledgment.
4.2.
The Seller may increase the price of the Goods, by giving notice to the Buyer at
any time before delivery, to reflect any increase in the cost of the Goods to the Supplierthat is due to foreign exchange fluctuations or changes in the price of precious metals.
4.3.
All prices quoted are valid for 60 days after which time they may be altered by the
Seller on giving notice to the Buyer. If the Buyer is acting as a "Consumer", as defined by

the Unfair Terms in Consumer Contracts Regulations 1999, the Buyer may within 7 daysof receipt of such notice cancel the Contract.
4.4.
Except as otherwise stated under the terms of any quotation or in any price list of
the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, allprices are given by the Seller on an ex-works basis, and where the Seller agrees to deliver
the Goods, the Buyer shall be liable to pay the Seller's charges for transport, packaging
and insurance which shall be the standard charges of the Seller’s preferred supplier applicable at the date of shipment.
4.5.
The price is exclusive of any applicable value added tax, which the Buyer shall be
additionally liable to pay to the Seller.
5.
TERMS OF PAYMENT
5.1.
The Seller shall be entitled to invoice the Buyer for the price of the Goods on orat any time after delivery of the Goods, unless the Goods are to be collected by the Buyeror the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shallbe entitled to invoice the Buyer for the price at any time after the Seller has notified theBuyer that the Goods are ready for collection or (as the case may be) the Seller has
tendered delivery of the Goods.
5.2.
The Buyer shall pay the price of the Goods in cleared funds within 30 days after
the date of the Seller's invoice, and the time for payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3.
The Buyer shall pay all amounts due under their Contract and for and without any
deduction or withholding except as required by law and the Buyer shall not be entitled toassert any credit, set-off or counterclaim against the Seller in order to justify withholding
payment of any such amount in whole or in part. The Seller may at any time, without
limiting any other rights or remedies it may have, set-off any amount owing to it by the
Buyer against any amount payable by the Seller to the Buyer.
5.4.
If the Buyer fails to make any payment on the due date then, without prejudice toany other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1. cancel the Contract or suspend any further deliveries to the Buyer;
5.4.2. 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);
5.4.3. charge the Buyer interest (both before and after any judgement) on the amount
unpaid, at the rate of 4% per annum above Barclays Bank Plc base rate from time to time,
until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and5.4.4. charge the Buyer and the Buyer shall indemnify the Seller on demand from andagainst all costs and expenses incurred by the Seller (including, but not limited to, alladministrative and legal costs) in obtaining the monies owed by the Buyer to the Seller.
6.
DELIVERY
6.1.
Delivery of the Goods shall be made by the Buyer collecting the Goods at the
Seller's premises at any time after the Seller has notified the Buyer that the Goods areready for collection or, if some other place for delivery is agreed by the Seller, by the
Seller delivering the Goods to that place.
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 fordelivery shall not be of the essence unless stipulated by the Seller in the purchaseacknowledgement. The Goods may be delivered by the Seller in advance of the quoteddelivery date upon giving reasonable notice to the Buyer.
6.3.
Where the Goods are to be delivered in instalments, each delivery shall constitutea separate Contract and failure by the Seller to deliver any one or more of the instalmentsin accordance with these Conditions or any claim by the Buyer in respect of any one ormore 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, and the Seller is accordingly liable to
the Buyer, 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. The Seller shall have no liability for any failure to deliver the Goods tothe extent that such failure is caused by a Force Majeure Event or the Buyer’s failure toprovide the Seller with adequate delivery instructions or other instructions that are relevant to the supply of the Goods.
6.5.
If the Buyer fails to take delivery of the Goods or fails to give the Seller adequatedelivery instructions at the time stated for delivery (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) of storage; or
6.5.2. after one month after the date when delivery should have taken place sell theGoods at the best price readily obtainable and (after deducting all reasonable storage andselling expenses) account to the Buyer for the excess over the price under the Contract
or charge the Buyer for any shortfall below the price under the Contract.
6.6.
If delivery is delayed by industrial dispute or any circumstances beyond theSeller's control then the periods for delivery shall be extended by such a period as isreasonable in the circumstances. Should any delay continue for a period exceeding six
months then, unless the parties agree to the contrary, the Contract shall be deemed to beterminated without any claim for compensation against the Supplier.
7.
RISK AND PROPERTY
7.1.
Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1. in the case of Goods to be delivered at the Seller's premises, at the time when
the Seller notifies the Buyer that the Goods are available for collection; or7.1.2. in the case of Goods to be delivered otherwise than at the Seller's premises, atthe time of delivery or, if the Buyer fails to take delivery of the Goods, the time when the
Seller has tendered delivery of the Goods.
7.2.
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title to the Goods shall not pass to the Buyer until the Seller
has received in cash or cleared funds payment in full of the price of the Goods and allother goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3.
Until such time as the title in the Goods passes to the Buyer, the Buyer shall keep
the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property.
7.4.
Subject to Clause 7.3, the Buyer may resell or use the Goods in the ordinary
course of its business (but not otherwise) before the Seller receives payment for theGoods. However, if the Buyer resells the Goods before that time:
7.4.1. it does so as principal and not as the Seller’s agent; and7.4.2. title to the Goods shall pass from the Seller to the Buyer immediately before thetime at which resale by the Buyer occurs.
7.5.
If one of the events listed in Clause 9.2 applies and until such time as the property
in the Goods passes to the Buyer (and provided the Goods are still in existence and havenot been resold), then the Buyer’s right to resell the Goods under Clause 7.4 shall automatically cease and the Seller shall be entitled at any time to require the Buyer to deliverup the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any
premises of the Buyer or any third party where the Goods are stored and repossess theGoods.
7.6.
The Buyer shall not be entitled to pledge or in any way charge by way of security
for any indebtedness any of the Goods which remain the property of the Seller, but if theBuyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any
other right or remedy of the Seller) forthwith become due and payable.
7.7.
Save as otherwise stated therein, the provisions of this Clause 7 shall survive thetermination of any Contract made pursuant to these Conditions for whatever reason andin particular but without limitations by the Seller by the acceptance of repudiation of thisContract by the Buyer.
8.
WARRANTIES AND LIABILITY
The price of Goods is based, in part, on the limits on the Seller's liability in these Conditions. The Buyer's attention is drawn in particular to the conditions 8.2 to 8.10 (inclusive).
In setting these limits the Seller has had regard to its insurance cover, copies of which
are available on request. The Buyer should make sure it has in place adequate insurance
cover.
8.1.
Subject to the conditions set out below the Seller warrants that on delivery and fora period of 12 months from the date of delivery (“the Warranty Period”), the Goods will:8.1.1. correspond in all material respects with their specification; and8.1.2. be free from material defects in design, material and workmanship.
8.2.
Subject to Clause 8.3 below, if:8.2.1. the Buyer gives notice in Writing to the Seller, during the Warranty Period, ondelivery, or if the defect or failure was not apparent on reasonable inspection of theGoods, within five business days after the Buyer becomes aware of the defect or failure;
8.2.2. the Seller is given a reasonable opportunity of examining such Goods; and8.2.3. the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s placeof business at the Seller’s cost,
the Seller shall, at its option, repair or replace the defective Goods or refund the price ofthe defective Goods (or a proportionate part of the price).
8.3.
The Seller shall not be liable for any Goods’ failure to comply with the warranty
set out in Clause 8.1 in any for the following events:
8.3.1. the defect arises as a result of any drawing, design or specification supplied by
the Buyer;
8.3.2. the defect arises as a result of fair wear and tear, wilful damage, negligence, abnormal working conditions;
8.3.3. the Buyer makes any further use of the Goods after giving notice in accordancewith Clause 8.2;
8.3.4. the defect arises because the Buyer has failed to follow the Seller's instructions
as to the storage, commissioning, installation, use and maintenance of the Goods or (ifthere are none) good trade practice regarding the same, including where the Goods havebeen used in circumstances where their failure could directly endanger life in breach ofClause 2.1;
8.3.5. the defect arises as a result of any parts, materials or equipment not manufacturedby the Seller (to the extent that the benefit of any warranties made or provided by the
manufacturer of the Goods (or the relevant parts) can be assigned to the Buyer, the Seller
shall assign them to the Buyer;
8.3.6. the Buyer or a third party alters or repairs the Goods without the Seller's approvalin Writing.
8.4.
Except as expressly provided in these Conditions, all warranties, conditions orother terms implied by statute or common law, including the terms implied by sections 13
to 15 of the Sale of Goods Act 1979 (as amended) are excluded to the fullest extent
permitted by law.
8.5.
These Conditions shall apply to any repaired or replacement Goods supplied by
the Seller.
8.6.
Notwithstanding anything else in the Contract, nothing shall limit or exclude theSupplier’s liability for:8.6.1. death or personal injury caused by the Seller's negligence or the negligence of
the Supplier’s employees, agents or subcontractors;
8.6.2. fraud or fraudulent misrepresentation;
8.6.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (asamended);8.6.4. any matter in respect of which it would be unlawful for the Supplier to exclude
liability.
8.7.
Subject to Clause 8.6:
8.7.1. the Seller shall under no circumstances be liable to the Buyer, whether in contract,
tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or
any indirect, special or consequential loss or damage, costs, expenses or other claims forconsequential compensation whatsoever, arising out of or in connection with this Contract, the supply of the Goods or their use or resale by the Buyer;
8.7.2. the Seller's entire aggregate liability to the Buyer in respect of all other losses
arising under or in connection with the Contract whether for tort (including negligence),
breach of contract, breach of statutory duty or otherwise shall in no circumstances exceed
150% of the price of the relevant Goods paid by the Buyer under the relevant Order.
8.8.
Neither party shall be liable to the other party or be deemed to be in breach ofthese Conditions for any failure or delay in performing its obligations under the Contract
to the extent that such failure or delay is caused by a Force Majeure Event. A Force
Majeure Event means any event beyond the party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable,
including (without limitation) strikes, lock-outs or other industrial disputes (whether involving its own workforce or third party’s), failure of energy sources or transport network, actsof God, war, terrorism, riot, civil commotion, interference by civil or military authorities,
national or international calamity, armed conflict, malicious damage, breakdown of plantor machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics orsimilar events, natural disasters or extreme adverse weather conditions, or default of suppliers or sub-contractors.
8.9.
In the event of that the affected party is prevented from carrying out its obligations
under this Contract due to a Force Majeure Event, the affected party shall give notice ofsuspension as soon as is reasonably possible to the other party stating the date and theextent of the suspension and its cause. The Seller shall resume the performance of its
obligations as soon as reasonably possible after the removal of the Force Majeure Eventand shall so notify the other party. In the event that the cause continues for more than
one month either party may terminate this Contract by giving the other party notice inWriting.
8.10. Except as provided in this Clause 8, the Seller shall have no liability to the Buyer
in respect of the Goods’ failure to comply with the warranty set out at Clause 8.1.
9.
INSOLVENCY OF BUYER
9.1.
If the Buyer becomes subject to any of the events listed in Clause 9.2, or the Sellerreasonably believes that the Buyer is about to become subject to any of them and notifies
the Buyer accordingly, then, without limiting any other right or remedy available to theSeller, the Seller may cancel or suspend all further deliveries under the Contract or under
any other contract between the Buyer and the Seller without incurring any liability to the
Buyer, and all outstanding sums in respect of Goods delivered to the Buyer shall become
immediately due.
9.2.
For the purposes of Clause 9.1, the relevant events are:9.2.1. the Buyer suspends, or threatens to suspend, payment of its debts or is unable topay its debts as they fall due or admits inability to pay its debts or (being a company) isdeemed unable to pay its debts within the meaning of section 123 of the Insolvency Act
1986, or (being an individual) is deemed either unable to pay its debts or as having no
reasonable prospect of so doing, in either case, within the meaning of section 268 of theInsolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or
9.2.2. the Buyer commences negotiations with all or any class of its creditors with a viewto rescheduling any of its debts, or makes a proposal for or enters into any compromiseor arrangement with its creditors other than (where the Buyer is a company) these eventstake place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with
one or more other companies or the solvent reconstruction of the Buyer; or
9.2.3. (being an individual) the Buyer is the subject of a bankruptcy petition or order; or
9.2.4. a creditor or encumbrancer of the Buyer attaches or takes possession of, or a
distress, execution, sequestration or other such process is levied or enforced on or sued
against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
9.2.5. (being a company) an application is made to court, or an order is made, for theappointment of an administrator or if a notice of intention to appoint an administrator isgiven or if an administrator is appointed over the Buyer; or
9.2.6. (being a company) a floating charge holder over the Buyer’s assets has become
entitled to appoint or has appointed an administrative receiver; or
9.2.7. a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets; or
9.2.8. any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events
mentioned in Clause 9.2.1 to Clause 9.2.7 (inclusive); or
9.2.9. the Buyer suspends, threatens to suspend, ceases or threatens to cease to carryon all or substantially the whole of its business; or
9.2.10. the Buyer’s financial position deteriorates to such an extent that in the Seller’s
opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has
been placed in jeopardy; or
9.2.11. (being an individual) the Buyer dies or, by reason of illness or incapacity (whether
mental or physical), is incapable of managing his or her own affairs or becomes a patientunder any mental health legislation.
10.
EXPORT TERMS
10.1. In this Clause 10 "Incoterms" means the international rules for the interpretationof trade terms of the International Chamber of Commerce as in force at the date when theContract is made. Unless the context otherwise requires, any term or expression which isdefined in or given a particular meaning by the provisions of Incoterms shall have thesame meaning in these Conditions, but if there is any conflict between the provisions of
Incoterms and these Conditions, the latter shall prevail.
10.2. Where the Goods are supplied for export from the United Kingdom, the provisionsof this Clause 10 shall (subject to any special terms agreed in writing between the Buyer
and the Seller) apply notwithstanding any other provision of these Conditions.
10.3. 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 paymentof any duties thereon.
10.4. Unless otherwise agreed in writing between the Buyer and the Seller, the Goods
shall be delivered EXW (Ex Works) Seller’s premises at the standard rates of the Seller’s
preferred supplier at the date of shipment.
10.5. The Buyer shall be responsible for arranging for testing and inspection of theGoods at the Seller's premises before shipment. The Seller shall have no liability for any
claim in respect of any defect in the Goods which would be apparent on inspection andwhich is made after shipment, or in respect of any damage during transit.
11.
GENERAL11.1. Any notice required or permitted to be given by either party to the other underthese Conditions shall be in writing addressed to that other party at its registered office or
principal 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. A notice is deemed tohave been served as follows:
11.1.1. if personally by facsimile or E-mail, at the time of delivery;
11.1.2. if posted, at the time of expiration of 48 hours or (in the case of airmail) 7 days
after the envelope containing the notice is posted.
11.2. Unless specifically stated to the contrary no failure or delay by either party in exercising any of its rights under these Conditions shall be deemed to be a waiver of thatright, and no waiver by either party of any breach of these Conditions shall be considered
as a waiver of any subsequent breach of the same or any other provision.

11.3. If any court or competent authority finds that any provision of the Contract (or partof any provision) is invalid, illegal or unenforceable, that provision or part-provision shall,to the extent required, be deemed to be deleted, and the validity and enforceability of theother provisions of the Contract shall not be affected.
11.4. If any invalid, unenforceable or illegal provision of the Contract would be valid,
enforceable and legal if some part of it were deleted, the provision shall apply with theminimum modification necessary to make it legal, valid and enforceable.
11.5. A person who is not a party to this Agreement has no right under the Contracts(Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does notaffect any right or remedy of a third party which exists or is available apart from that Act.
11.6. The Contract shall be governed by the laws of England, and the parties hereby
submit to the non-exclusive jurisdiction of the English Courts for all purposes arising inconnection with the Contract.
11.7. The Buyer shall not without the prior written consent of the Seller assign, transfer,charge, declare a trust over or deal in this Contract or its rights under it or part of it, or
purport to do any of the same.
11.8. The Seller may at any time assign, transfer, charge, subcontract or deal in any
other matter with any or all of its rights or obligations under the Contract.