Sulzer Mixpac (UK) Ltd Standard Terms of Supply

1    Interpretation

1.1    The definitions and rules of interpretation in this clause apply in these Terms.
“Contract” means the contract between Sulzer Mixpac (UK) and the Customer for the supply of Products as set out in the Order and which shall be subject exclusively to these Terms.
“Customer” means the person or company who buys or agrees to buy the Products from Sulzer Mixpac (UK), as set out in the Order.
“Delivery” means completion of delivery of an Order in accordance with clause 6.1 or clause 6.5.1.
“Delivery Date” means the date specified for delivery of Products as set out in the relevant Order.
“Delivery Location” means the location specified for collection or deliver of Products as set out in the relevant Order.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world and Intellectual Property Right means any one of the Intellectual Property Rights.
“Order” means an order for Products submitted by the Customer and accepted by Sulzer Mixpac (UK) in writing in accordance with clause 4.
“Sulzer Mixpac (UK)” means Sulzer Mixpac (UK) Limited (Company No. 03338184), of Turnpike Industrial Estate, Newbury, Berkshire, RG14 2LR, England.
“Price” the Price of the Products, as stated in the Order.
“Products” means the products ordered by and supplied to the Customer as set out in each Order.
“Quotation” means a quotation issued by Sulzer Mixpac (UK) to the Customer for the supply of Products.
“Terms” means these Terms and conditions of the supply of Products set out in this document and any special terms and conditions which are expressly agreed in writing by Sulzer Mixpac (UK).
“VAT” means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.

1.2    Headings shall not affect the interpretation of these Terms.

1.3    A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4    A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.5    A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted whether before or after the date of these Terms and, in the case of a statute, includes any subordinate legislation made under that statute from time to time..

1.6    A reference to writing or written includes faxes but not e-mail..

1.7    Any obligation in these Terms on a person not to do something includes an obligation not to agree or allow that thing to be done..

2    Conditions Applicable

2.1    These Terms shall be deemed to be incorporated in all Quotations, Orders and Contracts to the exclusion of all other terms and conditions sent by the Customer to Sulzer Mixpac (UK), irrespective of the date any alternative terms and conditions are sent.  Any statement made in correspondence from the Customer which purports to incorporate additional or replacement terms of supply in relation to the Products shall not be valid and shall be immediately withdrawn by the Customer upon request by Sulzer Mixpac (UK).
2.2    These Terms shall become binding on the Customer on the earlier of:.

2.2.1    The Customer signing or agreeing in writing to the Order;.

2.2.2    The Customer paying any amount towards the Products;.

2.2.3    Sulzer Mixpac (UK) notifying the Customer that the Products are ready for collection; or.

2.2.4    Sulzer Mixpac (UK) delivering the Products to the address nominated by the Customer..

2.3    Any Quotation shall be valid for a period of thirty (30) calendar days from its date of issue unless Sulzer Mixpac (UK) notifies the Customer in writing that the Quotation has been withdrawn during this period..

2.4    Notwithstanding that a detailed Order may have been given to and accepted by the Customer, Sulzer Mixpac (UK) reserves the right to amend the Order or cancel the Contract without penalty if Sulzer Mixpac (UK) determines that the Products cannot be satisfactorily delivered.  The Customer may also terminate an Order without penalty if it does not agree to any revision to it within 7 days of receiving such revised Order from Sulzer Mixpac (UK).

3    Supply of the Products

3.1    During the Term, Sulzer Mixpac (UK) shall supply and the Customer shall purchase such quantities of Products as the Customer may order under clause 4 in accordance with the terms and conditions of these Terms.

3.2    The quantity of any consignment of Products as recorded by Sulzer Mixpac (UK) on despatch and shown on Sulzer Mixpac (UK)’s delivery note shall be conclusive evidence of the quantity of Products received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

3.3    Sulzer Mixpac (UK) shall use reasonable endeavours to deliver the Products by the Delivery Date, however time shall not be of the essence in relation to the Delivery Date or the length of time that any of the Products take to manufacture or supply.

4    Orders

4.1    Each Order shall be deemed to be a separate offer by the Customer to purchase Products on the terms of these Terms, which Sulzer Mixpac (UK) shall be free to accept or decline at its absolute discretion.

4.2    No Order shall be deemed to be accepted by Sulzer Mixpac (UK) until it issues an Order number or written acceptance to the Order.

4.3    Each Order shall:

4.3.1    be given in writing or, if given orally, must be confirmed in writing by the Customer within two Business Days;

4.3.2    specify the type and quantity of Products ordered and the Products' code numbers; and

4.3.3    specify the date by which the Products ordered are required for collection or delivery.

4.4    Sulzer Mixpac (UK) shall assign an Order number (“Order Number”) to each Order it accepts and notify such Order Numbers to the Customer together with the date by which the Order will be ready for collection (Delivery Date). Each party shall use the relevant Order Number in all subsequent correspondence relating to the Order.

4.5    Once an Order is accepted by Sulzer Mixpac (UK), the Customer may not cancel or amend it without the prior written consent of Sulzer Mixpac (UK) which may be withheld without reason.

5    Quality and packing

5.1    The Products supplied to the Customer by Sulzer Mixpac (UK) under these Terms shall:

5.1.1    conform to any specification agreed in writing by Sulzer Mixpac (UK) (“Specification”);

5.1.2    be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by Sulzer Mixpac (UK);

5.1.3    comply with all applicable statutory and regulatory requirements.

5.2    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 the Contract.

5.3    Sulzer Mixpac (UK) shall package the Products in such manner as to enable them to reach their destination in good condition.

6    Delivery

6.1    Delivery of an Order shall be completed on the completion of loading of the Order at Sulzer Mixpac (UK)’s premises for delivery to the Customer or when Sulzer Mixpac (UK) places the Order at the Customer's disposal at its the Delivery Location.

6.2    Sulzer Mixpac (UK) may deliver Orders by instalments, which may be invoiced and paid for separately. Where Orders are to be delivered by instalments, they may be invoiced and paid for separately. References in these Terms to Orders shall, where applicable, be read as references to instalments.

6.3    Delays in the delivery of an Order shall not entitle the Customer to:

6.3.1    refuse to take delivery of the Order; or

6.3.2    claim damages; or

6.3.3    terminate these Terms.

6.4    Sulzer Mixpac (UK) shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Customer's failure to comply with its obligations under these Terms.

6.5    If the Customer fails to take delivery of an Order on the earlier of the Delivery Date or within three Business Days of Sulzer Mixpac (UK) notifying the Customer that the Order is ready for collection, then, except where such failure or delay is caused by Sulzer Mixpac (UK)'s failure to comply with its obligations under these Terms:

6.5.1    delivery of the Order shall be deemed to have been completed at 9.00am on the earlier of the Delivery Date or the third Business Day following the day on which Sulzer Mixpac (UK) notified the Customer that the Order was ready for collection; and

6.5.2    Sulzer Mixpac (UK) shall store the Order until delivery takes place, and charge the Customer for all related costs and expenses (including insurance) and such amounts shall be payable on demand.

6.6    Each Order shall be accompanied by a delivery note from Sulzer Mixpac (UK) showing the Order Number, the date of the Order, the type and quantity of Products included in the Order, and, in the case of an Order being delivered by instalments, the outstanding balance of Products remaining to be delivered.

6.7    The parties agree that if, in respect of an Order, Sulzer Mixpac (UK) delivers a partial quantity that is less than the quantity of Products ordered, the Customer shall not be entitled to reject the Order.

7    Acceptance and defective products

7.1    The Customer may reject any Products delivered to it that do not comply with clause 5.1, provided that:

7.1.1    notice of rejection is given to Sulzer Mixpac (UK):
(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 five days of the latent defect having become apparent; and

7.1.2    none of the events listed in clause 7.3 apply.

7.2    If the Customer fails to give notice of rejection in accordance with clause 7.1, it shall be deemed to have accepted such Products.

7.3    Sulzer Mixpac (UK) shall not be liable for Products' failure to comply with the warranty set out in clause 5.1 in any of the following events:

7.3.1    the Customer makes any further use of such Products after giving notice in accordance with clause 7.1;

7.3.2    the defect arises because the Customer failed to follow Sulzer Mixpac (UK)'s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;

7.3.3    the defect arises as a result of Sulzer Mixpac (UK) following any drawing, design or specification supplied by the Customer;

7.3.4    the Customer alters or repairs such Products without the written consent of Sulzer Mixpac (UK);

7.3.5    the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

7.3.6    the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

7.4    If the Customer rejects Products under clause 7.1 then Sulzer Mixpac (UK) may at its sole discretion elect to either:

7.4.1    repair or replace the rejected Products; or

7.4.2    repay the Products Price of the rejected Products in full,
and once Sulzer Mixpac (UK) has complied with either of the above, it shall have no further liability to the Customer in respect of the rejected Products' failure to comply with clause 5.1.

7.5    The terms of these Terms shall apply to any repaired or replacement Products supplied by Sulzer Mixpac (UK).

8    Title and risk

8.1    Risk in Products shall pass to the Customer on Delivery as determined by clause 6.1.

8.2    Title to Products shall not pass to the Customer until Sulzer Mixpac (UK) has received payment in full (in cash or cleared funds) for all other sums which are or which become due to Sulzer Mixpac (UK) from the Customer for sales of Products or on any account.

8.3    Until title to Products has passed to the Customer, the Customer shall:  

8.3.1    hold such Products on a fiduciary basis as Sulzer Mixpac (UK)'s bailee;  

8.3.2    store such Products separately from all other goods held by the Customer so that they remain readily identifiable as Sulzer Mixpac (UK)'s property;  

8.3.3    not remove, deface or obscure any identifying mark or packaging on or relating to such Products; and  

8.3.4    maintain such Products in satisfactory condition and keep them insured on Sulzer Mixpac (UK)'s behalf for their full price against all risks with an insurer that is reasonably acceptable to Sulzer Mixpac (UK). The Customer shall obtain an endorsement of Sulzer Mixpac (UK)'s interest in the Products on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Customer shall allow Sulzer Mixpac (UK) to inspect such Products and the insurance policy,
but the Customer may resell or use Products in the ordinary course of its business.

8.4    If before title to Products passes to the Customer the Customer becomes subject to any of the events in clause 13.2.4 to clause 13.2.9 then, provided that such Products have not been resold and without limiting any other right or remedy Sulzer Mixpac (UK) may have, Sulzer Mixpac (UK) may at any time require the Customer to deliver up such Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Products are stored in order to recover them.

9    Product prices

9.1    The Product Prices are exclusive of amounts in respect of VAT. The Customer shall, on receipt of a valid VAT invoice from Sulzer Mixpac (UK), pay to Sulzer Mixpac (UK) such additional amounts in respect of VAT as are chargeable on a supply of Products.

9.2    Sulzer Mixpac (UK) may review and where appropriate, apply changes to the Product Prices on 30 days notice to the Customer however such notice shall not affect Products which are already subject to an agreed Order unless otherwise permitted by these Terms.

10    Terms of payment

10.1    Sulzer Mixpac (UK) shall be entitled to invoice the Customer for each Order on or at any time after Delivery. Each invoice shall quote the relevant Order Numbers.

10.2    The Customer shall pay invoices in full and in cleared funds within 30 days of the date of such invoice or otherwise if specified by Sulzer Mixpac (UK).

10.3    If the Customer fails to make any payment due to the other under these Terms by the due date for payment (due date), then, without limiting Sulzer Mixpac (UK)’s remedies under these Terms, the Customer shall pay interest on the overdue amount at the rate of 8% and such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.

10.4    Any dispute regarding an invoice shall not alleviate the Customer of its obligation to pay that part of the invoice not in dispute, or interest on any unpaid amount that subsequently is found not to have been incorrectly charged to the Customer.

10.5    Sulzer Mixpac (UK) may set off any amounts owed to it by the Customer against any amounts payable by it to the Customer.  The Customer shall not be entitled to withhold any amount due under the Contract, or set off any monies due and payable or owed by it to Sulzer Mixpac (UK) for any reason.

10.6    All payments payable to Sulzer Mixpac (UK) or the Customer under an Order shall become due immediately on its termination unless terminated by Sulzer Mixpac (UK) due to inability to supply. This clause 10.6 is without prejudice to any right to claim for interest under the law or under these Terms.

10.7    VAT is payable by the Customer at the appropriate rate on all amounts due under the Contract.

10.8    Time for payment of all amounts due by the Customer under the Contract shall be of the essence.  

10.9    The Customer shall indemnify Sulzer Mixpac (UK) in full against any and all costs, losses, expenses or damages incurred by Sulzer Mixpac (UK) (including but not limited to all legal fees and loss of management time) in collecting or attempting to collect any amount which remains outstanding by its due date for payment and such amounts shall be recoverable as a debt against the Customer.

11    Cancellation

11.1    Sulzer Mixpac (UK) may cancel an Order or the Contract without penalty at any time before the Products are provided by giving written notice to the Customer and repaying any monies paid by the Customer.

11.2    If Sulzer Mixpac (UK) agrees to cancel a Contract at the Customer’s request then the Customer will remain responsible for the cost of any materials, products or services Sulzer Mixpac (UK) is contractually committed to manufacturing or buying up to the date of cancellation (whether or not Sulzer Mixpac (UK) need to pay for them before or after the date the Contract is cancelled) together with a reasonable amount for the losses and costs (including loss of profit) Sulzer Mixpac (UK) has suffered.  If the Customer has paid a deposit, this will be retained and if Sulzer Mixpac (UK)’s reasonable losses and costs (including loss of profit) are greater than the deposit Sulzer Mixpac (UK) has retained Sulzer Mixpac (UK) will require the Customer to pay for Sulzer Mixpac (UK)’s losses and costs in excess of the deposit retained.  

12    Limitation of liability

12.1    This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:

12.1.1    any breach of these Terms however arising;

12.1.2    any use made or resale of the Products by the Customer, or of any product incorporating any of the Products; and

12.1.3    any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.

12.2    Nothing in these Terms shall limit or exclude the liability of either party for:

12.2.1    death or personal injury resulting from negligence; or

12.2.2    fraud or fraudulent misrepresentation; or

12.2.3    any matter for which it would be unlawful to limit their liability within England or Wales.

12.3    Without prejudice to clause 12.2, Sulzer Mixpac (UK) shall not under any circumstances whatever be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:

12.3.1    loss of profit; or
12.3.2    loss of goodwill; or
12.3.3    loss of business; or
12.3.4    loss of business opportunity; or
12.3.5    loss of anticipated saving; or
12.3.6    special, indirect or consequential damage suffered by the Customer under or in connection with these Terms.

12.4    Without prejudice to clause 12.2 or clause 12.3, Sulzer Mixpac (UK)'s total liability arising under or in connection with these Terms, 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 amount of the Order to which such liability relates.

12.5    Any liability of Sulzer Mixpac (UK) for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata rate under these Terms against any invoice raised for such Products.

12.6    Nothing in the Contract shall be permitted to reduce or remove any statutory right or entitlement of any Customer who is a consumer as defined by the Consumer Credit Act 1974 (“Consumer”).

12.7    Except in circumstances where the Customer is a Consumer, the Customer acknowledge that, in entering into the Contract it does not do so in reliance on any representation, warranty, condition or other provision or any duty at common law, except as expressly provided in these Terms and any conditions, warranties or other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.

13    Commencement and term

13.1    These Terms shall commence on the Commencement Date and shall remain in effect until the terminated by either party as permitted by these Terms.

13.2    Sulzer Mixpac (UK) shall be entitled to terminate these Terms at any time (including with immediate effect) if:

13.2.1    the Customer fails to pay any amount due under these Terms on the due date for payment; or

13.2.2    the Customer commits a material breach of its obligations under these Terms and (if such breach is remediable) fails to remedy that breach within a period of 7 days after receipt of notice in writing requiring it to do so; or

13.2.3    the Customer commits or a series of persistent minor breaches which when taken together amount to a material breach; or

13.2.4    the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due; or

13.2.5    the Customer commences negotiations with all or any class of its creditors, or makes a proposal for or enters into any compromise or arrangement with its creditors; or

13.2.6    a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer; or

13.2.7    an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or

13.2.8    a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or

13.2.9    the Customer ceases, or threatens to cease, to carry on all or substantially the whole of its business; or

13.2.10    there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).

14    Consequences on Termination

14.1    Termination of the Contract however caused shall be without prejudice to any rights or liabilities accrued at the date of termination.

14.2    The termination of the Contract shall not of itself give rise to any liability on the part of Sulzer Mixpac (UK) to pay any compensation to the Customer, including but not limited to, for loss of profits or goodwill.

14.3    Upon termination of a Contract for any reason, the Customer shall immediately pay for any Products held to order or on consignment.

15    Severance

15.1    If any provision of these Terms (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

15.2    If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

16    General

16.1    Save as otherwise provided in these Terms, each party shall pay its own costs in connection with the negotiation, preparation, execution and performance of these Terms, and all ancillary documents to it.  

16.2    The Customer may not assign or transfer or sub-contract any of its rights, benefits or obligations under these Terms however Sulzer Mixpac (UK) may assign, transfer or sub-contract any of its rights or obligations under these Terms.

16.3    Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to these Terms and the transactions contemplated by it.

16.4    Sulzer Mixpac (UK) (or any person acting on its behalf) shall not have any liability or responsibility for failure to fulfil any obligation under these Terms so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of an event beyond its control (or that if any person acting on its behalf), which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities, or failure of energy sources. (“Force Majeure Event”).

16.5    For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of these Terms these Terms are not intended to, and do not, give any person who is not a party to it any right to enforce any of its provisions.

16.6    Any notice required to be given pursuant to the Contract shall be in writing and shall be given by delivering the notice by hand at, or by sending the same by prepaid first class post (airmail if to an address outside the country of posting) to, the address of the relevant Party set out in the Contract or such other address as either party notifies to the other from time to time. Any notice given according to the above procedure shall be deemed to have been given at the time of delivery (if delivered by hand) and when received (if sent by post).

16.7    Nothing in the Contract shall be deemed to constitute a partnership between the parties nor constitute either party the agent of the other party for any purpose.

16.8    The failure of either party to exercise or enforce any right under the Contract shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.

16.9    Save as expressly provided in these Terms, no variation of an Order or the Contract shall be effective unless in writing and signed by Sulzer Mixpac (UK).

16.10    The Contract shall be governed by and construed in accordance with the Laws of England and the parties accept the exclusive jurisdiction of the England courts to determine any dispute arising out of it.

16.11    The Contract constitutes the entire understanding between the parties with respect to the subject matter and supersedes all prior agreements, negotiations and discussions between the parties relating to it.