Terms & Conditions of Sale & Service
All sales are made and all orders are accepted subject to any relevant sales contract and the following terms and conditions (“the Contract”) to the exclusion of any terms and conditions stipulated by the Buyer and any representations or warranties not expressly incorporated herein writing including any unauthorised representations concerning the goods made by any employees or agents of the Seller. The Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
1.1 Definitions:Business Day: A day, other than a Saturday, Sunday or public holiday.
Collection Location: Kilo’s premises or such other location as may be advised by Kilo.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.5.
Contract: the contract between Kilo and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Kilo.
Delivery Location: the location set out in the Order or such other location as the parties may agree.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
Kilo: Kilo Limited registered in England and Wales with company number 04825117.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form, the Customer's written acceptance of Kilo's quotation, or submitted by the Customer by email or telephone, as the case may be.
Specification: the specification for the Goods that is agreed in writing by the Customer and Kilo.
1.2.1 A reference to:
(a) a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(b) any phrase introduced by the terms including or include or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms;
(c) writing or written includes emails but not fax.
These Conditions apply in all circumstances when Kilo and the Customer are trading with each other in the course of their respective businesses.
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
The Order will only be deemed to be accepted when Kilo issues a written acceptance of the Order, at which point the Contract will come into existence.
The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
Any samples, drawings, descriptive matter or advertising produced by Kilo and any descriptions or illustrations contained in Kilo's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They will not form part of the Contract nor have any contractual force. More particularly, the provision of a sample by Kilo is for information only and will in no way be taken to imply any warranty or condition as to the quality, merchantability, fitness for purpose, suitability or other properties of the Goods.
All information detailed in or on Kilo’s containers, bottles and packaging are intended to be and may be construed only as of a generally informative nature and will not be deemed to import any warranty as to the quality of the Goods.
A quotation for the Goods given by Kilo will not constitute an offer. All quotations are subject to availability of and cost to Kilo of Goods and may be withdrawn or amended by Kilo at any time.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer will indemnify Kilo against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Kilo in connection with any claim made against Kilo for:
3.2.1 actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Kilo's use of the Specification;
3.2.2 personal injury, loss or damage to property arising from the use of the Goods unless such injury, loss or damage is solely attributable to the negligence of Kilo or Kilo’s employees or agents.
3.3 Clause 3.2 will survive termination of the Contract.
3.4 Kilo reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements. Notwithstanding any such change, the Customer must accept and pay for the Goods in accordance with these Conditions provided that Kilo has accepted the Customer’s order pursuant to clause 2.4 before the change to the Specification takes effect.
3.5 Any advice or recommendations given by Kilo or its employees or agents relating to the suitability of the Goods is supplied in good faith but the Customer must satisfy itself that the Goods are suitable for the intended purpose.
3.6 The Customer must ensure that the Goods are at all times handled in a safe manner by competent persons.
3.7 The Goods supplied by Kilo may under certain circumstances give rise to health and safety risks. Technical literature relating to the Goods supplied by Kilo giving information on toxological, fire or handling hazards is available on request from Kilo and if the Customer has not had sight of such literature, it is strongly advised to request a copy of the same. Kilo will be under no liability whatsoever for any action taken or refrained by the Customer in relation to such information.
4.2 Kilo reserves the right at any time to refuse to make delivery of the Goods if in its sole opinion the storage and offloading facilities proposed by the Customer are unsafe or inadequate for the Goods. All reasonable costs incurred by Kilo in attempting to make delivery in these circumstances will be for the account of the Customer. Delivery of the Goods by Kilo or Kilo’s agent such delivery will in no way constitute a commitment or representation by Kilo as to the suitability of the Buyer’s storage or offloading facilities.
4.3 If Kilo delivers the Goods to the Customer: 4.3.1 Kilo will ensure that each delivery of the Goods is accompanied by a delivery note;
4.3.2 Kilo will deliver the Goods to the Delivery Location;
4.3.3 the risk in the Goods will pass to the Customer on completion of delivery; and
4.3.4 delivery is completed on the completion of the unloading of the Goods at the Delivery Location.
4.4 If Kilo agrees that the Customer may collect the Goods:
4.4.1 Kilo will make available to the Customer a delivery note;
4.4.2 the Customer will collect the Goods from the Collection Location within 5 Business Days of Kilo notifying the Customer that the Goods are ready for collection;
4.4.3 the risk in the Goods will pass to the Customer on collection; and
4.4.4 collection is completed on the completion of loading of the Goods at the Collection Location.
4.5 If Kilo requires the Customer to return any packaging materials to Kilo, it will notify the Customer. The Customer will return packaging materials at such times and in such manner as Kilo will reasonably request. Returns of packaging materials will be at Kilo's expense. If the return of packaging material is not required by Kilo, the Customer must dispose of the packaging at its own expense.
4.6 If Kilo makes a charge to the Customer in respect of containers or packaging used to deliver Goods or make them available for collection, it is the responsibility of the Customer to return such containers/packaging to Kilo within 3 months of the date of delivery/collection (unless Kilo requests an alternative return time) in order to obtain any refund agreed as due.
4.7 Any dates quoted for delivery/collection are approximate only, and the time of delivery or collection is not of the essence. Kilo will not be liable for any delay in delivery or collection of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Kilo with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.8 If the Customer wishes to change a pre-agreed delivery/collection date then it must give Kilo 48 hours’ notice. The Customer will pay Kilo’s costs in connection with such a request including (without limitation) storage and re-delivery costs.
4.9 The Customer will not be liable for the price of and Kilo will refund any amount paid in respect of Goods, which Kilo fails to deliver or make available for collection (as the case may be). Subject only to clause 10.1 but notwithstanding any other provision of these Conditions or the Contract, Kilo’s further liability in respect of such failure will be limited to the lesser of the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality at the cheapest price available and 10% of the price of the Goods in respect of which such failure occurred. However, Kilo will have no liability for any failure to deliver Goods or make the same Goods available for collection to the extent that such failure is caused by a Force Majeure Event or any breach or failure by the Customer.
4.10 If the Customer fails to take or accept delivery of the Goods within 3 Business Days of Kilo notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Kilo's failure to comply with its obligations under the Contract:
4.10.1 delivery/collection of the Goods will be deemed to have been completed at 9.00 am on the third Business Day after the day on which Kilo notified the Customer that the Goods were ready; and
4.10.2 Kilo will store the Goods until delivery/collection takes place, and charge the Customer for all related costs and expenses (including insurance).
4.11 If 10 Business Days after the day on which Kilo notified the Customer that the Goods were ready for delivery the Customer has not taken (or accepted) delivery of them, Kilo may resell or otherwise dispose of part or all of the Goods.
4.12 Kilo may deliver the Goods or make the Goods available for collection by instalments, which will be invoiced and paid for separately. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
4.13 Kilo may at its discretion agree to deliver Goods to addresses outside of the United Kingdom. However, there are restrictions on some Goods for certain international delivery destinations and it is the Customer’s responsibility to ascertain information about the existence and applicability of such restrictions. If the Customer orders Goods for delivery outside of the United Kingdom, that order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Kilo has no control over these charges and cannot predict their amount. The Customer will be responsible for payment of any such import duties and taxes. The Customer must comply with all applicable laws and regulations of the country for which the Goods are destined. Kilo will not be liable or responsible if the Customer breaks any such law.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to Kilo within 7 days of delivery or collection (provided that notice is given to Kilo within 24 hours’ of discovery) (and within 24 hours’ of delivery or, as the case may be collection, if the alleged defect is apparent on visual inspection) that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 Kilo is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Kilo) returns such Goods to Kilo's place of business at Kilo's cost, Kilo will, at its option, replace any Goods it agrees are defective, or refund the price of defective Goods in full.
5.3 Kilo will not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow Kilo's oral or written instructions as to the storage, handling, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of Kilo following any drawing, design or specification supplied by the Customer;
5.3.4 the Customer alters such Goods without the written consent of Kilo;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Kilo will have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions will apply to any replacement Goods supplied by Kilo.
6.1.1 Kilo receiving payment in full (in cash or cleared funds) for the Goods and any other goods that Kilo has supplied to the Customer in respect of which payment has become due, in which case title to the Goods will pass at the time of payment of all such sums; and
6.1.2 the Customer reselling the Goods, in which case title to the Goods will pass to the Customer at the time specified in clause 6.3.
6.2 Until title to the Goods has passed to the Customer, the Customer will:
6.2.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Kilo's property;
6.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.2.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery/collection;
6.2.4 notify Kilo immediately if it becomes subject to any of the events listed in clause 9.1; and
6.2.5 give Kilo such information relating to the Goods as Kilo may require from time to time.
6.3 Subject to clause 6.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Kilo receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.3.1 it does so as principal and not as Kilo’s agent; and
6.3.2 title to the Goods will pass from Kilo to the Customer immediately before the time at which resale by the Customer occurs.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy Kilo may have:
6.4.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.4.2 Kilo may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8.1.1 all applicable consular charges, stamp duties, export or import duties, purchase tax or similar fiscal demands (UK or otherwise), bank charges and interest charges; and
8.1.2 amounts in respect of value added tax (“VAT”), which the Customer will additionally be liable to pay to Kilo at the prevailing rate, subject to the receipt of a valid VAT invoice.
8.2 Kilo’s order acceptance given pursuant to clause 2.4 will confirm the cost of carriage and freight.
8.3 Kilo may, by giving notice to the Customer at any time before delivery/collection, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
8.3.1 any factor beyond Kilo's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.3.2 any request by the Customer to change the delivery/collection date(s), quantities or types of Goods ordered, or the Specification; or
8.3.3 any delay caused by any instructions of the Customer or failure of the Customer to give Kilo adequate or accurate information or instructions.
8.4 Kilo may invoice the Customer for the Goods on or at any time after the completion of delivery or collection (as the case may be).
8.5 Unless otherwise agreed in writing, the Customer will pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment will be made to the bank account nominated in writing by Kilo. Time for payment is of the essence.
8.6 If the Customer fails to make any payment due to Kilo under the Contract by the due date for payment, then the Customer will pay interest on the overdue amount at the greater of 4% per annum above the Bank of England’s base rate from time to time and the High Court judgment rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer will pay the interest together with the overdue amount.
8.7 The Customer will pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Kilo may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Kilo to the Customer.
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
9.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4 the Customer's financial position deteriorates to such an extent that in Kilo's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, Kilo may suspend provision of the Goods under the Contract or any other contract between the Customer and Kilo if the Customer becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.4, or Kilo reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, Kilo may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason, the Customer will immediately pay to Kilo all of Kilo's outstanding unpaid invoices and interest.
9.5 Termination of the Contract will not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
10.1.4 any matter in respect of which it would be unlawful for Kilo to exclude or restrict liability.
10.2 Subject to clause 10.1:
10.2.1 Kilo will under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 Kilo's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the price of the Goods.
12.1 Dispute resolution.12.1.1 An Expert is a person appointed in accordance with this clause 12.1 to resolve any disagreement between the parties relating to (i) the Specification of the Goods and (ii) whether the Goods comply with the warranty at clause 5.1. Where under the Contract a party wishes to refer a matter to an Expert, the parties will first agree on the appointment of an independent Expert and agree with the Expert the terms of his appointment. If the parties are unable to agree on an Expert or the terms of the Expert's appointment within 7 days of either party serving details of a suggested expert on the other, either party will then be entitled to request the Chemical Business Association to appoint a suitable and appropriate Expert with the required expertise. The Expert is required to prepare a written decision including reasons and give notice of the decision to the parties within a maximum of 3 months of the matter being referred to the Expert. If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required, then either party may apply to the Chemical Business Association to discharge the Expert and to appoint a replacement Expert with the required expertise and this clause 12.1 will apply to the new Expert as if they were the first Expert appointed. Each party will with reasonable promptness supply each other with all information and give each other access to all documents, personnel and things as the other party may reasonably require to make submissions to the Expert. The Expert will act as an expert and not as an arbitrator. The Expert will determine the matters referred to the Expert under the Contract. The Expert's written decision on the matters referred to the Expert will be final and binding on the parties in the absence of manifest error or fraud. All matters concerning the process and result of the determination by the Expert will be kept confidential among the parties and the Expert. Each party will act reasonably and co-operate to give effect to the provisions of this clause 12.1 and otherwise do nothing to hinder or prevent the Expert from reaching their determination. The Expert and the Chemical Business Association will have no liability to the parties for any act or omission in relation to this appointment, save in the case of bad faith.
12.1.2 If any other dispute arises in connection with the Contract or these Conditions, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution ("CEDR") Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing ("ADR notice") to the other party the dispute, referring the dispute to mediation. If there is any point on the logistical arrangements of the mediation, other than nomination of the mediator, upon which the parties cannot agree within 14 days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the parties having consulted with them. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR notice.
12.1.3 For the avoidance of doubt, clause 12.1 will not prevent Kilo from immediately initiating court proceedings to seek any interim relief (including injunctive relief) or take advantage of any applicable time limitation.
12.2 Assignment and other dealings.Kilo may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Kilo.
12.3 Confidentiality.Each party undertakes that it will not disclose to any person any confidential information concerning the business (including pricing information), affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by this clause 12.3. For the purposes of this clause 12.3, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party. Each party may disclose the other party's confidential information (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12.3. No party will use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.4 Entire agreement.The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract or these Conditions. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract or these Conditions.
12.5 Variation.No variation of the Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6 Waiver.No failure or delay by a party to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance.If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.7 will not affect the validity and enforceability of the rest of the Contract.
12.8 Notices.Any notice or other communication given to a party under or in connection with the Contract will be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause 12.8, and will be delivered personally, sent by pre-paid first class post or other next working day delivery service or commercial courier. A notice or other communication will be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.8; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting and if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed. The provisions of this clause 12.8 will not apply to the service of any proceedings or other documents in any legal action.
12.9 Third party rights.No one other than a party to the Contract and their permitted assignees will have any right to enforce any of its terms.
12.10 Governing law and Jurisdiction.The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
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