BELZONA UK LTD TERMS AND CONDITIONS FOR UK CONTRACTS
These are the terms and conditions on which Belzona UK Ltd contracts with the Buyer. Please read them carefully, particularly clause 11 (which contains limitations and exclusions on Belzona ’s liability).
DEFINITIONS
In these terms and conditions, the following words and phrases shall have the following meanings: –
Belzona: Belzona UK Ltd, a company registered in England and Wales with company number: 00592654 whose registered office is at Claro Road, Harrogate, HG1 4DS, UK.
Belzona’s Premises: Belzona ’s offices Unit 3 Vista, Stephen Wade Way, Manor Lane, Hawarden CH5 3FN.
Buyer: the person, firm or company purchasing the Goods from Belzona pursuant to a Contract.
Contract: any contract, including but not limited to a Belzona Order Form or schedule of contract Works, between Belzona and the Buyer for the sale and purchase of the Goods, or a relevant provision of Works, incorporating these terms and conditions.
Goods: any goods agreed in the Contract to be supplied to the Buyer by Belzona (including any part or parts of them).
Order Acknowledgement: the acknowledgement of your order to be sent by Belzona to You in accordance with clause 3.2 below
Works: means the consulting or other professional services provided to You pursuant to a Contract.
Working Days means any day on which the UK clearing banks in London are open for business.
You: the Buyer and ‘your’ or ‘yours’ shall be interpreted accordingly.
APPLICATION OF TERMS
The Contract shall be on these terms and conditions to the exclusion of all other terms and conditions. No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract.
You acknowledge that You have not relied on any statement, promise or representation made or given by or on behalf of Belzona which is not set out in the Contract.
Each order for Goods requested by the Buyer from Belzona, including Buyer’s affirmative responses to any quotation provided by Belzona where applicable, shall be deemed to be an offer by You to buy Goods subject to these terms and conditions.
These terms and conditions apply to all of Belzona’s sales and any variation to these conditions and any representations about the Goods shall have no effect and shall not form part of the Contract unless expressly agreed, with an express reference to the affected part(s) of the Contract where applicable, in writing and signed by a director of Belzona.
Any quotation is valid for a period of 30 days only from its date, provided that Belzona has not previously withdrawn it.
ORDER ACCEPTANCE
Each order or acceptance of a quotation for Goods by You from Belzona shall be deemed to be an offer by You to buy Goods subject to these conditions forming part of a Contract.
No order placed by You shall be deemed to be accepted by Belzona until the Order Acknowledgement is issued by Belzona or (if earlier) Belzona delivers the Goods to You.
The quantity and description of the Goods shall be as set out in the Order Acknowledgement or Packing List included with the Goods.
It is the Buyer’s responsibility to ensure that the terms of their order and any applicable specifications are complete and accurate. Belzona will not accept any cancellation requests due to the Buyer selecting incorrect products. Order cancellations for any other reason will only be considered at Belzona’s sole discretion and must be requested in writing. Any approved cancellations may be subject to cancellation fees or other applicable charges.
Belzona agrees to deliver goods and services exclusively within the United Kingdom. You acknowledge and agree that the goods and services provided under this Agreement are intended solely for use within the United Kingdom. You shall not export, re-sell, or distribute the goods or services outside of the United Kingdom. Any breach of this clause shall be considered a material breach of this Agreement.”
DELIVERY
Any dates specified by Belzona for delivery of the Goods are intended to be an estimate, but Belzona will use its reasonable endeavors to meet your requirements. In any event, the time for delivery shall not be made of the essence by notice. If no dates are specified for delivery, then delivery shall be within a reasonable time.
Subject to the other provisions of these terms and conditions Belzona shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Belzona’s negligence) unless expressly agreed by Belzona in writing. If Belzona does accept liability in writing its liability shall be limited to such liquidated damages (if any) as may have been specifically agreed in writing prior to the issue of the Order Acknowledgement.
No delay in delivery by Belzona shall entitle You to terminate or cancel the Contract unless such delay exceeds 30 days.
Belzona may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle You to cancel any other Contract or instalment.
Belzona does not supply Goods on approval. The Goods are not returnable except by express written agreement with Belzona.
RISK/TITLE
The Goods are at your risk from receipt of the Goods by You, or Collection of the Goods by You from our premises, whichever occurs first.
Ownership of the Goods shall not pass to You until Belzona have received in full (in cash or cleared funds) all sums due to Belzona in respect of:
the Goods; and
all other sums which are, or which become due to Belzona from You on any account.
Until ownership of the Goods has passed to You, You shall:
hold the Goods on a fiduciary basis as Belzona’s bailee;
store the Goods (at no cost to Belzona) separately from all other goods of Belzona or any third party in such a way that they remain readily identifiable as Belzona’s property;
not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
maintain the Goods in satisfactory condition and keep them insured on Belzona’s behalf for their full price against all risks to Belzona’s reasonable satisfaction. On request You shall produce the policy of insurance to Belzona.
You may resell the Goods before ownership has passed to You solely on the following conditions:
any sale shall be effected in the ordinary course of your business at full market value; and
any such sale shall be a sale of Belzona’s property on your own behalf and You shall deal as principal when making such a sale.
The Buyer’s right to possession of the Goods, and at Belzona’s option the entire Contract, shall terminate immediately if:
the Buyer has a bankruptcy order made against it or the Buyer makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or the Buyer enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or the Buyer has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against the Buyer, or the Buyer fails to observe or perform any of its obligations under the Contract or any other contract between the Buyer and Belzona, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
the Buyer encumbers or in any way charges any of the Goods.
Belzona shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Belzona.
You grant Belzona, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where your right to possession has terminated, to recover them.
Where Belzona are unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Belzona to the Buyer in the order in which they were invoiced to the Buyer.
On termination of the Contract, howsoever caused, Belzona’s (but not your) rights contained in this clause 5 shall remain in effect.
PROFESSIONAL SERVICES/ WORKS
(section 6 is only applicable when the application of Belzona materials, Training or Supervision is being undertaken by our own Belzona Application Services)
If You require any Works or similar professional services from Belzona You will furnish Belzona, at least 10 working days prior to the planned Works commencement date, with all information that Belzona requests in advance of the Works and any additional information that, in Your opinion, is relevant to the Works and would assist Belzona personnel to complete the Works. This will include, but not be limited to, drawings, details of the project and the estimated duration of each section of the project. Should delays or errors arise as a result of information that was available to You but not provided to Belzona within the timescale outlined above You accept responsibility for any additional costs incurred by Belzona as a consequence of these errors or delays. Belzona may waive the 10-working day minimum notice period of the project commencement date but retains the right to charge the rates detailed in this Contract in clause 6.2 below for delays and additional costs incurred resulting from the non-disclosure of information by You.
Where the agreed scope of the Works is varied by You or as a result of delays (including delays due to weather conditions) and additional costs arising from the non-disclosure of information by You as detailed in clause 6.1, the following list of additional charges will apply to the amount agreed in the final quotation document –
An hourly rate of £30 per Belzona Operatives per hour.
Additional Belzona product will be charged at the current unit list price of Belzona from time to time.
– Any charges incurred by Belzona due to the non-provision by You of specified required inputs (including, without limitation, items of plant and equipment, electrical power or water supplies) will be charged to You at cost plus 10%.
The rates in clause 6.2 above will be doubled if it has been agreed by all parties that work will take place on Christmas Day, Boxing Day or New Years Day.
Where there is uncertainty concerning the project commencement date Belzona personnel can be placed on standby for an agreed period of time around the anticipated commencement date. A standby charge will apply to all working days (or part thereof) spent offsite at a rate of £250 per day per Belzona Operative.
If You wish to cancel the provision of arranged Works, you must provide at least 10 Working Days’ notice. Failure to provide the required notice of cancellation shall result in You being liable for the following cancellation charges according to the period of notice given. For the purpose of the Contract the “Rates” shall be taken to mean the normal day rate charged by each of the applicable Personnel assigned to the relevant Works and the Cancellation Charge shall be calculated as the Rates payable over the course of a maximum of 5 Working Days of the Works (or less if the Works are agreed to cover a shorter period than 5 Working Days) in addition to any direct costs or expenses incurred by Belzona in preparing for such Works such as the cost of pre-purchased materials or plant hire or Works already carried out where applicable:
With at least 10 Working Days’ notice: A Cancellation Charge not including any charge for the wasted Rates.
With at least 5 but less than 10 Working Days advance notice: A Cancellation Charge including 30% of the Rates;
With at least 3 but less than 5 Working Days advance notice: a Cancellation Charge including 60% of the Rates;
With less than 3 Working Days advance notice: a Cancellation Charge including 90% of the Rates; or
If notice is given on or after the commencement date for the Works: a Cancellation Charge including 100% of the Rates.
PRICE
The price of the Goods or Works is the price in force at the date and time of your order. Belzona reserves the right to change the price of the Goods or Works:
before Belzona issues the Order Acknowledgement; or
after Belzona issues the Order Acknowledgement but before the Goods or Works are delivered to cover variations in the cost to Belzona of manufacture, carriage and insurance where variations in such costs arise between the date of the Order Acknowledgement and the Time of Delivery or commencement of the Works.
If Belzona increase the price of the Goods or Works in accordance with clause 7.1 then it will notify You in writing of the amount of the increase. If You are unhappy with the amount of the increase, then You may terminate the Contract by giving Belzona notice in writing within 1 Working Day of the date on which Belzona notified You of the increase in the price of the Goods or Works. Belzona shall have no liability whatsoever for any loss, damage, cost, expense, action and/or claim which may be suffered by You as a result of termination of the Contract under this clause.
The price for the Goods or Works shall be exclusive of any value added tax and all costs or charges in relation to packaging, carriage and insurance and Belzona reserves the right to increase invoiced prices and charges by an amount equal to the Value Added Tax payable on the supply of chargeable Goods and Services by Belzona to You.
PAYMENT
Payment of the price for the Goods must be made in pounds sterling within 30 days after the date of invoice, unless otherwise agreed. Payment must be made to Belzona unless otherwise requested by Belzona and should be in the form stipulated by Belzona.
Payments made by cheque will incur a surcharge of £50.00 to cover administrative and banking costs.
Time for payment shall be of the essence.
No payment shall be deemed to have been received until Belzona has received cleared funds.
You shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless You have a valid court order requiring an amount equal to such deduction to be paid by Belzona to You.
If You fail to pay Belzona any sum due pursuant to the Contract, You shall be liable to pay interest to Belzona on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Lloyds TSB plc (or above zero if greater), accruing on a daily basis until payment is made, whether before or after any judgment. Belzona reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
QUALITY OF GOODS
Belzona warrants that (subject to the other provisions of these terms and conditions) upon delivery the Goods shall
be free from minor defects,
be fit for the express purpose of use described in any applicable accompanying documentation, Specification or usage guides,
be safe and durable according to the limits set out in the applicable Specification and as required by all applicable statutory and regulatory requirements;
Belzona shall not be liable for a breach of the warranty in clause 9.1 unless:
You give written notice of the defect to Belzona within 10 days of:
the time when You discover the defect; or
the time when the defect (in whole or in part) became apparent or discoverable on reasonable enquiry or examination; and
Belzona are given a reasonable opportunity after receiving the notice of examining such Goods and You (if asked to do so by Belzona) return such Goods to Belzona’s Premises at Belzona’s cost for the examination to take place there.
Belzona shall not be liable for a breach of the warranty in clause 9.1 if:
You make any further use of such Goods after giving such notice; or
the defect arises because You failed to follow Belzona’s oral or written instructions as to the storage, handling, transportation and/or use of the Goods or (if there are none) Good Industry Practice;
the defect arises as a result of specific instructions you provided to Belzona and would not have occurred but for such instructions; or
You alter such Goods without Belzona’s written consent.
Subject to clause 9.2and clause 9.3, if any of the Goods do not conform with the warranty in clause 9.1 Belzona shall at its sole option and absolute discretion replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Belzona so requests, You shall, at Belzona ’s expense, return the Goods or the part of such Goods which is defective to Belzona ’s Premises.
If Belzona comply with clause 9.4 Belzona shall have no further liability for a breach of the warranty in clause 9.1 in respect of such Goods.
Belzona has given commitments as to compliance of the Goods with relevant Specifications in Clause 9.1. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this agreement.
SPECIFICATIONS AND INTELLECTUAL PROPERTY
Specifications, drawings, data, literature and statements as to dimensions, suitability performance or otherwise issued by Belzona Limited in connection with Goods (“the Belzona Materials”) are provided in good faith. The Belzona Materials are intended to be approximate only. You shall not rely upon the Belzona Materials for any particular Goods unless an express and specific guarantee is given to You in writing by Belzona.
You are responsible for the correct selection of Goods ordered from Belzona unless otherwise agreed by Belzona in writing. Belzona may make recommendations and give assistance on the selection of Goods, but You shall not be entitled to rely on such recommendations or assistance, and You shall rely solely on such expertise as may be available to You from Your own or other technical sources.
The copyright in the Belzona Materials shall remain the property of Belzona. The Belzona Materials are confidential if they are marked as confidential or otherwise indicated to be confidential. The Belzona Materials and Belzona’s confidential manufacturing and operating techniques shall not be disclosed or used except as necessary for the purpose of application and use by You of the Goods in relation to which the Belzona Materials or Belzona’s operating techniques were supplied or disclosed.
LIMITATION OF LIABILITY
The following provisions set out the entire financial liability of Belzona (including any liability for the acts or omissions of its employees, agents and sub-contractors) to You in respect of:
any breach of the Contract and any related loss or claims howsoever arising relating to the supply of the Goods and or Works as applicable in the circumstances;
any use made or resale by You of any of the Goods, or of any product incorporating any of the Goods; and
any representation, statement or tortious act or omission including any and all forms of negligence or misstatement arising under or in connection with the Contract or any Works associated with the same.
All warranties, conditions and other terms implied by statute or common law (except for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
Nothing in these conditions excludes or limits the liability of Belzona:
for death or personal injury caused by Belzona ’s negligence; or
under section 2(3), Consumer Protection Act 1987 to the extent that You are a person who suffers damage within the meaning of Section 5 of the Consumer Protection Act 1987; or
for any matter which it would be illegal for Belzona to exclude or attempt to exclude its liability; or
for fraud or fraudulent misrepresentation.
Subject to clause 11.2 and clause 11.3:
Belzona’s total liability in contract, tort (including any form of negligence or breach of statutory duty), misrepresentation, restitution or otherwise under any other theory of law, arising out of or in connection with the performance or contemplated performance of any Contract shall be limited to £1,000,000 for any one occurrence; and
Belzona shall not be liable to You for loss of profits, loss of business, loss of contracts, loss or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused and regardless of the type of such loss) which arise out of or in connection with the Contract.
You shall compensate, defend and hold harmless Belzona its agents and employees on an indemnity basis from and against all claims by, and from all loss and damage suffered in relation to any third party claim directly or indirectly connected with or arising out of the acquisition, sale, use, operation or possession of the Goods (whether such claim loss or damage arises from breach of contract or of third party rights or by or from negligence of Belzona , its employees, suppliers, sub-contractors, agents or otherwise) including to the extent to which any such claim exceeds the £1,000,000 liability cap offered by Belzona above. The obligation to provide compensation shall continue in force in relation to the subject matter of the Contract regardless of the parties remaining obligations under the Contract having been discharged or termination of the Contract.
HAZARDS AND SAFETY INFORMATION
You agree that:
You will:
familiarise yourself with all hazards and precautionary procedures with respect to the storage, handling, transportation and use of the Goods or products made in whole or in part from the Goods (“Derived Products”) and the packaging in which the Goods or Derived Products are shipped; and
manage and store the Goods, Derived Products and packaging accordingly;
You will forward all product safety information provided by Belzona to your employees, your customers and anyone else who handles the Goods or Derived Products. Current Safety Data Sheets for Belzona products can be found at www.belzona.com or clicking on this link
You agree that You will compensate Belzona in full against all loss and damage (including costs) resulting from your failure to comply with the provisions of clause 12.1.
ASSIGNMENT
Belzona may assign the Contract or any part of it to any person, firm or company.
You shall not be entitled to assign the Contract or any part of it without the prior written consent of Belzona.
FORCE MAJEURE
Subject to clause 14.2 and clause 14.3 below Belzona reserves the right by written notice (without liability to You for loss or damage arising from Belzona ’s actions) to suspend performance of Belzona ’s obligations under the Contract and/or to cancel unfulfilled parts of the Contract in whole or in part if Belzona is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Belzona including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. This is without prejudice to any rights Belzona may have in respect of any breach of contract by You.
If Belzona exercises its right to suspend performance of the Contract or to cancel an unfulfilled Contract (in part or in whole) You may (by written notice to Belzona given within seven days of Belzona’s notice of suspension or cancellation) cancel any unfulfilled part of the suspended or cancelled Contract. Such cancellation shall only be effective if You pay Belzona’s fair charges in respect of the Contract (but limited to the contract price for the Goods or the Cancellation Charges expressed above for Works) to the extent to which such Contract shall have been fulfilled together with such expenses as shall have been incurred by Belzona prior to cancellation of the Contract.
Belzona’s liability in the event of suspension of performance and/or cancellation of the Contract in whole or in part shall be limited to repayment to You (without interest) of such part of the contract price for the Goods or prepayment made by You attributed to any unfulfilled and cancelled part of the Contract less any expense incurred by Belzona in part performance of the Contract prior to cancellation.
INTERPRETATION
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
Words in the singular include the plural and vice versa.
A reference to one gender includes a reference to the other gender.
Clause headings do not affect the interpretation of these terms and conditions.
A reference to writing or written includes e-mails but not faxes or via text message.
GENERAL
Each right or remedy of Belzona under the Contract is without prejudice to any other right or remedy of Belzona whether under the Contract or not.
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 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.
Failure or delay by Belzona in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
Any waiver by Belzona of any breach of, or any default under, any provision of the Contract by You shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
The formation, existence, construction, performance, validity and all aspects of the Contract, and any related disputes, shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
No variation of this agreement or any Contract shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
Each party shall protect the other party’s Confidential Information (including but not limited to any and all such information that a party should have known or was aware was commercially sensitive or otherwise nonpublic, including any personal data of business contacts acquired or required under this agreement) shall be kept confidential and each party shall apply at least the same protection as it would apply to its own confidential information both during the term of the Contract and for a reasonable period of time after its expiry or termination as applicable. Each party reserves all rights in its Confidential Information as defined in this clause. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement This clause is without prejudice to any legitimate legal obligation to disclose information upon request to a supervisory authority pursuant to an official investigation or warrant.
COMMUNICATIONS
All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post or sent by email:
(in case of communications to Belzona) to its registered office or such other address as shall be notified to You by Belzona or by email to sales@belzona.co.uk; or
(in the case of the communications to You) to the address specified in your Purchase Order provided to Belzona or such other address as You have notified to Belzona in writing or to the e-mail address that the Buyer has provided to Belzona during the order process.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Communications shall be deemed to have been received:
if sent by pre-paid first-class post, two Working Days after posting (exclusive of the day of posting); or
if delivered by hand, on the day of delivery; or
if sent by email on a Working Day prior to 4.00 pm, at the time of transmission and otherwise at 9:00am on the next Working Day.