Conditions of Sale

Primasil Silicones Ltd are a private limited company based in the UK, registered number 02105252.

Our main trading address is Kington Road, Weobley, Herefordshire HR4 8QU, UK.

1.      Definitions

a)
i. ‘CUSTOMER’ – means the company or person whose order for Goods &/or Services is accepted by Primasil;
ii. ‘CONDITIONS’ – means the standard conditions of sale set out in this document and includes any special terms and conditions agreed in Writing between Primasil and the Customer;
iii. ‘CONTRACT’ – any contract between the Customer and Primasil for the sale of Goods &/or Services incorporating these Conditions;
iv. ‘DELIVERY’ – as defined in Clause 8;
v. ‘ECOMMERCE’ – means business carried out online;
vi. ‘EX-STOCK’ – means stock at Primasil’s premises &/or available for immediate despatch;
vii. ‘INCOTERMS’ – means the International Rules for the Interpretation of Trade Terms of The International Chamber of Commerce as in force at the date the Contract is made;
viii. ‘GOODS’– means all products, parts, and components described in an Order or Quotation to be supplied by Primasil in accordance with these Conditions;
ix. ‘MATERIAL FORMULATION’ – means the ingredients/recipes/know-how required to manufacture any material used to satisfy the Order;
x. ‘ONLINE PLATFORM’ – means a website used to sell Goods &/or Services;
xi. ‘ORDER’ – means an order for Goods &/or Services placed by the Customer;
xii. ‘ORDER ACKNOWLEDGEMENT’ – means written confirmation by Primasil that an Order has been accepted;
xiii. ‘PRICE’ – means the price of the Goods &/or Services, being either Primasil’s Quoted price or the price listed in Primasil’s published price list current at the date of Delivery or deemed Delivery and, where appropriate, unit prices being multiplied by the total number of units of the Goods supplied;
xiv. ‘QUOTATION’ – means an offer by Primasil to supply Goods &/or Services for a specified Price;
xv. ‘PRIMASIL’ – means Primasil Silicones Ltd, a company registered in England and Wales whose registered number is 01357452 and whose registered office is Kington Road, Weobley, Herefordshire, United Kingdom HR4 8QU;
xvi. ‘SERVICES’ – means all services described in an Order or Quotation to be performed by Primasil in accordance with these Conditions;
xvii. ‘TOOLING’ – means any mould/die/jig (and such like) used to fulfil the Order;
xviii. ‘WRITING’ – includes email or other electronic means of communication, facsimile transmission and comparable means of communication.
b)
In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
c)
In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
d)
In these Conditions the headings will not affect the construction or interpretation of these Conditions.

2.      General

a)
These Conditions shall govern the Contract to the exclusion of any other terms and conditions and no variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Customer and Primasil. No terms and conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract.
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b)
Primasil’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by Primasil in Writing. The Customer acknowledges that it does not rely on any such representations which are not so confirmed.
c)
Any concession allowed by us to the Customer shall not prevent our subsequently exercising our full rights in accordance with these Conditions of Sale.
d)
Any quotation is given on the basis that no contract will come into existence until Primasil confirms the Customer’s order pursuant to Condition 3.d). Any quotation is valid for a period of 30 days only from its date, provided that Primasil has not previously withdrawn it.
e)
Primasil shall not be expected to know that goods may be used for medical, life-saving, safety critical, pharmaceutical, toxic, explosive, radioactive or highly flammable products; use in power stations, computers, or computer rooms; used in refineries, bulk storage, production premises in the oil, gas or chemical industries; used on Ministry Of Defence premises; used in hovercraft or aerospace systems; used underground or underwater; used in connection with railways, airfields, or airports; used in steering or braking systems of motor vehicles. If any goods supplied by Primasil are intended for any of these uses, Primasil must be notified. A signed notification from Primasil must be obtained.
f)
Any typographical, clerical or other error or omission in an order; any literature, quotation, price list, acceptance of order, invoice or other document shall be subject to corrections without any liability on the part of Primasil.

3.      Prices, Orders and Specifications

a)
For regular (non-Ecommerce) Orders, current prices will be quoted specific to each Customer. These may be subject to alteration without notice and Orders are only accepted on the basis that prices charged are those ruling at the date of despatch.
b)
In the event of an increase in price of ingredients, components, &/or raw materials Primasil reserves the right to pass these on to the Customer with at least 15 days’ notice. Prior to manufacture of the Goods, the Customer has the right to cancel the Order.
c)
For Ecommerce Orders, prices are as quoted on Primasil’s website or other relevant Online Platforms. Due to human error, technology issues, or other reasons, it may the case that from time to time incorrect prices are quoted. Primasil reserves the right to decline Orders if the prices are incorrect.
d)
Unless otherwise stated, any Quotation by Primasil is an invitation to the Customer to make an offer only and no Order of the Customer shall be binding on Primasil unless:
i. For Ecommerce orders, the Order is fulfilled.
ii. For regular Orders, an Order Acknowledgement is sent by Primasil.
e)
Offers of Goods Ex-stock are subject to such Goods remaining in stock and unsold at the time of receipt of Order.
f)
Primasil reserves the right to vary the Price should the Customer order different quantities from those stated and quoted for, and/or require delivery over a different period. The cost of any variation or modification in design, specification, materials or drawings or the development thereof requested by the Customer shall, if agreed to by us, be borne by the Customer.
g)
All prices are quoted exclusive of Value Added Tax, which will be charged at the rate applicable at the appropriate tax point.
h)
No Order submitted by the Customer shall be deemed to be accepted by Primasil until confirmed by an Order Acknowledgement.
i)
The Customer shall be responsible to Primasil for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Customer, and for giving Primasil any necessary information relating to the Goods and Services within a sufficient time to enable Primasil to perform the Contract in accordance with its terms. Primasil shall not be liable for the consequences of any inaccuracy, will not issue a credit note in respect of an order and will be entitled to charge the Customer for the costs it incurs by any variations in an Order.
j)
The quantity, quality and description of and any specification for the Goods and Services shall be those set out in Primasil’s Quotation (if accepted by the Customer) or the Customer’s Order (if accepted by Primasil).
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k)
If the Goods are to be manufactured or any process is to be applied to the Goods by Primasil in accordance with a specification submitted by the Customer, the Customer shall indemnify Primasil against all loss (including loss of profit), damages, costs, charges and expenses awarded against or incurred by Primasil in connection with or paid or agreed to be paid by Primasil 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 Primasil’s use of the Customer’s specification for the Goods.
l)
Primasil reserves the right to make any changes to Material Formulations in the specification of the Goods or Services which do not materially affect quality or performance.
m)
No order which has been accepted by Primasil may be cancelled by the Customer except with the agreement in Writing of Primasil and on terms that the Customer shall indemnify Primasil 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 Primasil as a result of cancellation.

4.      Settlement Terms

a)
Except for sales of Tooling, and where otherwise agreed by Primasil, settlement terms are strictly 30 days net from date of invoice.
b)
Tooling sales are due for settlement one-third with Order, one-third with delivery, and one-third 30 days from date of invoice.
c)
Ecommerce orders are due for settlement immediately with the Order.
d)
Time for payment shall be of the essence of the Contract. If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy, Primasil shall be entitled to:
i. Cancel the Contract or suspend any further deliveries to the Customer;
ii. Charge interest on overdue accounts at 8% above the prevailing Bank of England base rate;
iii. Recover any administration charges and costs (including without limitation legal costs) incurred in recovering overdue payments, payments not being honoured at the bank or otherwise on a full indemnity basis.

5.      Tooling

a)
Primasil is solely entitled to use all Tooling paid for by the Customer exclusively for the manufacture of Goods detailed in Customers’ orders, unless otherwise agreed in writing.
b)
Whilst every care will be exercised, Primasil cannot accept any liability for damage to Tooling whilst in our possession.
c)
Primasil is solely entitled to the property in and of use of all Tooling provided by Primasil.
d)
If an order for Goods requiring existing Tooling has not been received from the Customer in any 24-month period, Primasil may use the Tooling for our own purposes and sell any products created to other Customers.
e)
If an order for Goods requiring existing Tooling has not been received from the Customer in any 24-month period, Primasil may charge Customer rent for the Tooling of £50 per calendar month.

6.      Packaging

a)
Normal packaging requirements are included in the cost of the Goods; any special packaging must be specified and paid for by the Customer.

7.      Carriage

a)
Unless stated otherwise, Goods are supplied carriage paid, and consigned by Primasil’s preferred carrier unless otherwise specified by the Customer or advised by Primasil on the Quotation.

8.      Delivery

a)
Delivery of the Goods shall be made by the Customer collecting the Goods at Primasil’s premises at any time after Primasil has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by Primasil, by Primasil delivering the Goods to that place. Where Primasil agrees to deliver Goods otherwise than at Primasil’s premises, Primasil shall be under no obligation under s32(3) of the Sale of Goods Act 1979.
b)
The Customer will take Delivery of the Goods within 14 days of Primasil giving it notice that the Goods are ready for Delivery and will at its expense provide adequate and appropriate equipment and labour for unloading the Goods.
c)
The quantity of any consignment of Goods as recorded by Primasil upon despatch from Primasil’s place of business shall be evidence of the quantity received by the Customer on Delivery unless the Customer can provide conclusive evidence proving the contrary.
d)
If Primasil delivers to the Customer a quantity of Goods of up to 10% more or less than the quantity acknowledged by Primasil the Customer shall not be entitled to object to or reject the Goods by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Price.
e)
Any dates quoted for Delivery of the Goods and performance of the Services are approximate only. Time for Delivery shall not be of the essence. The Goods and/or Services may be delivered by Primasil in advance of the quoted Delivery date upon giving reasonable notice to the Customer.
f)
Save as set out in these Conditions Primasil will not be liable for any direct, indirect, consequential or special loss (all which terms include, loss of profits, loss of business, loss of contract, loss of production, business interference, loss of operating time, loss of use, and depletion of goodwill) costs, damages, charges, or expenses caused directly or indirectly by any delay in the Delivery of the Goods or Services (even if caused by Primasil’s negligence) nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 365 days from the quoted Delivery date.
g)
Primasil’s liability for non-delivery shall be limited to the excess (if any), of the cost to the Customer (in the cheapest available market) of similar Goods &/or Services to replace those not delivered, over the Price.
h)
Where the Goods are to be delivered and/or Services to be performed in instalments, each Delivery shall constitute a separate contract and failure by Primasil to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
i)
If the Customer fails to take Delivery of the Goods and/or Services or fails to give Primasil adequate Delivery instructions (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of Primasil’s fault) then, without prejudice to any other right or remedy available to Primasil, Primasil may store the Goods until actual Delivery and charge the Customer for the reasonable costs (including insurance) of storage or sell the Goods at the best price readily obtainable and account to the Customer for the excess over the Price or charge the Customer for any shortfall below the Price.

9.      Delivery Risk and Property

a)
Risk or damage to or loss in respect of Goods shall pass to the Customer:
i. In the case of Goods to be picked up from Primasil’s premises, at the time when Primasil notifies Customer that the Goods are available for collection; or
ii. In the case of Goods to be delivered to the Customers’ premises, at the time of delivery or, if Customer wrongfully fails to take delivery of the Goods, the time when Primasil has tendered delivery of the Goods; or
iii. In the case of Goods to be delivered to a different address, at the time of delivery or, if the recipient at that address fails to take delivery of the Goods, the time when Primasil has tendered delivery of the Goods.
b)
In all cases the risk in respect of all Goods shall pass to the Customer at the time of delivery.
c)
Notwithstanding such delivery, until the price of the Goods comprised in this or any other contract between the Customer and Primasil shall have been paid or satisfied in full:
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i. The title to and property in the Goods shall remain vested with Primasil;
ii. Primasil may at any time recover and resell the Goods (if in the Customer’s possession or under its control) if any sum owed by the Customer to Primasil under this contract is not paid on the due date for payment. For the purpose of exercising Primasil’s rights under this sub-clause Primasil, Primasil’s servants or agents together with all necessary and appropriate transport shall be entitled to free and unrestricted entry upon the Customer’s premises and/or the location where the Goods are situated.
iii. The Customer shall possess the Goods as Primasil’s bailee and shall store the goods for Primasil in a proper manner without charge and ensure that they are clearly identified as belonging to Primasil.
iv. The Customer is hereby authorised to sell the goods in the ordinary course of its business as Primasil’s agent and for Primasil’s account and to pass title in the Goods to its purchasers being bona fide purchasers for the value without notice of Primasil’s rights, but for the Customer’s right of resale shall automatically cease if any sum owed by the Customer to Primasil under any contract is not paid on the due date for payment.
v. Upon the resale of the Goods by the Customer the proceeds of sale thereof shall be received and held by the Customer in trust for Primasil but the Customer shall be entitled to retain for itself therefrom any excess over the amount then outstanding under this or any other contract.
vi. Nothing in this sub-clause shall;
1) Entitle the Customer to return the Goods or to delay payment therefore; or
2) Constitute or be deemed to have constituted the Customer as Primasil’s agent otherwise than for the purpose of this sub-clause; or
3) Authorise the Customer to give or make any representation to any third party in relation to the goods that shall be binding on Primasil. Where damage to or total or partial loss of Goods occurs before delivery to the Customer, Primasil undertakes (subject to receiving written notice as mentioned below) to replace or (at Primasil’s discretion) repair free of charge any Goods so damaged or lost within a reasonable time except that Primasil may as a condition thereof require the Customer to return any damaged goods to Primasil’s works.
d)
Both the carrier (if appropriate) and Primasil must be advised (otherwise than upon carriers’ documents) within 14 days of receipt of invoice if Goods are not delivered or within 3 days of delivery if damage, pilferage or shortage is revealed upon receipt of Goods. Provided that such notice is given Primasil will endeavour to assist the Customer to obtain proof of delivery or admission of damage, pilferage or short delivery.
e)
Save as expressly provided in this capital condition Primasil shall not have any liability whatsoever for or in connection with damage to or loss of Goods in transit to the contracted place of delivery.

10.   Instalment Contracts

a)
Where goods are delivered, or services are supplied by instalments;
i. Each such instalment be deemed to be sold or supplied under a separate contract to which these Conditions shall apply and save as provided in Settlement Terms no default in respect of any one instalment shall affect or prejudice due performance of the Contact as regards any other instalments; and
ii. The Customer shall be obliged to pay for each instalment upon the terms set out in Settlement Terms.

11.   Warranty

a)
Save as set out in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
b)
Primasil does not exclude liability:
i. For fraudulent misrepresentation or death or personal injury resulting from Primasil’s negligence or that of Primasil’s employees;
ii. For direct physical damage to or physical loss of the property of the Customer resulting from Primasil’s or its employees’ negligent acts or omissions provided that Primasil’s liability under this sub-condition;
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A. shall not exceed in aggregate a sum equal to the total aggregate sum’s payable by the Customer to Primasil under the Contract;
iii. Which cannot be excluded or restricted at law.
c)
Subject to Conditions 11.b) Primasil will not be liable to the Customer for any:
i. Direct loss, damage or injury; and/or
ii. Indirect, consequential or special loss, damage or injury including financial loss, loss of profits, loss of business, loss of contract, loss of production, business interference, loss of operating time or loss of use and depletion of goodwill; to the Customer or to the Customer’s property, whether foreseeable or not and howsoever, whensoever or wheresoever arising whether by reason of any representation or any implied warranty, condition or other term or duty at common law or under statute or under the express terms of the Contract (and whether caused by the negligence of Primasil or otherwise) or otherwise in respect of or in connection with the provision of the Goods or Services.
d)
Where any Goods or Service are shown to Primasil’s reasonable satisfaction to be defective by reason of faulty materials or workmanship, or (in the case of goods other than Special Goods as defined below) Design, Primasil shall either:
i. Deliver replacement Goods &/or supply further Services to the Customer free of charge; or,
ii. Refund to the Customer the Contract price of such Goods &/or Services; or,
iii. Require the Customer to retain the Goods &/or Services and grant to the Customer a reasonable allowance in respect of such defects.
Provided that:
A. The Customer shall notify Primasil in writing within 14 days of receipt of goods; and,
B. If so required by Primasil, all defective goods are first returned to Primasil’s premises carriage paid and
C. The goods shall have been properly and correctly stored and/or used by the Customer and
D. Primasil’s liability for any such defects shall be limited stored in sub-clause (b) and (c) of this Clause.
e)
Unless product specific aging tests have been carried out and approved by the Customer, Primasil shall not be liable for any claims with regards to cosmetic and /or visual changes to the product over time.

12.   Intellectual Property

a)
Any specification or formulae provided by the Customer shall remain the property of the Customer and Primasil shall keep strictly confidential all such information relating to the specification or formula and shall not disclose the same to any third party.
b)
Any specification, formulae, or manufacturing process provided by Primasil shall remain the property of Primasil and the Customer shall keep strictly confidential all such information relating to the specification or formula or manufacturing process and shall not disclose the same to any third party.

13.   Special Goods

a)
In this Clause ‘Special Goods’ means goods made or adapted specifically to the Customer’s design &/or specification.
b)
Primasil accepts no responsibility whatsoever for the accuracy or suitability of patterns, designs, dimensions, drawings, colours, particulars or specifications relating to Special Goods which shall be supplied by the Customer and Primasil shall be entitled to accept the same as being without defect.
c)
Primasil shall have no responsibility for the quality or fitness of Special Goods for any particular purpose whether such purpose is made known to us and the conditions implied by sections 13 to 15 of the Sale Of Goods Act 1979 shall be excluded. The Customer undertakes to indemnify Primasil and keep Primasil fully effectively indemnified from and against all actions, proceedings, claims, costs, loss, damage or expense whatsoever, whether arising in contract or in tort which Primasil may suffer or incur as a result of any defect in Special Goods, whether in quality, design, fitness for purpose or in any other way whatsoever unless the same is due directly to our negligence or the negligence of Primasil servants or agents.
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d)
The Customer represents and warrants to Primasil that neither the Special Goods nor the manufacture thereof by Primasil will infringe any patent, copyright, registered design or other proprietary right of any third party (third party rights) and the Customer further undertakes to indemnify Primasil and keep Primasil fully and effectually indemnified from and against all actions, proceedings, claims, costs, loss, any amounts paid by Primasil (upon legal advice) in settlement of any claim out of Court.
e)
Special Goods (whether or not own-named branded or marked) not accepted by the Customer (for whatever reason) may be sold in the open market for such price as Primasil may be able to obtain, and Primasil may be reimbursed out of the proceeds, without prejudice to any further course of action by Primasil for recovery.

14.   Export Terms

a)
The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into, or the provision of the Services, within the country of destination and for the payment of any duties on them.
b)
Unless otherwise agreed in Writing between Primasil and the Customer, the Goods shall be delivered “FOB” the sea port of shipment and Primasil shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979 (as amended).
c)
Unless otherwise agreed in Writing payment of all amounts due to Primasil shall be made by irrevocable letter of credit in a form acceptable to Primasil opened by the Customer in favour of Primasil and confirmed by a London clearing bank acceptable to Primasil.

15.   Notices

a)
Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or 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.

16.   Waiver

No failure or delay by Primasil in enforcing or partially enforcing any provision of the Contract will be construed as a waiver of any of its rights under the Contract and no waiver by Primasil of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

17.   Severability

a)
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

18.   Contracts (Rights of Third Parties) Act 1999

a)
The parties do not intend that anything contained within these Conditions will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to them.

19.   Assignability

a)

The Customer shall not be entitled to assign the Contract or any part of it without the prior consent in Writing of Primasil. Primasil may assign the Contract or any part of it at any time to any person firm or company.

20.   Force Majeure

a)
Primasil shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Primasil’s obligations in relation to the Goods &/or Services, if the delay or failure was due to any cause beyond Primasil’s reasonable control, examples of which include, but shall not be limited to, an
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act of God, flood, fire, tempest, accident, pandemic, war, terrorism, civil disturbance, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, strikes, difficulties in obtaining raw materials, labour, fuel, parts or machinery or power failure or breakdown in machinery.

21.   Remedies

a)
Each right or remedy of Primasil under the Contract is without prejudice to any other right or remedy of Primasil.

22.   Governing Law

a)
The Contract shall be governed by the laws of England, and the Customer agrees to submit to the jurisdiction of the English courts.