CONDITIONS OF SALE OF GOODS AND SERVICES

1.   Application
1.1 These conditions apply to all contracts between the Seller and the Buyer referred to in the order and override all conditions stipulated by the Buyer (even if submitted in a later document; any other agreements between the parties relating to the subject matter of this order are terminated (except an agreement into which these conditions are incorporated).
1.2 No variation of these conditions is permitted unless agreed in writing by a director of KMS Products Ltd.

2. Price
2.1 The price to be paid for the goods or the services will be the Seller’s price at the date when the goods are despatched or the services are provided.
2.2 The price of the goods includes the cost of the Seller’s standard packaging and delivery within the UK and Ireland by Seller’s normal transportation, the price does not include VAT.

3. Payment
3.1 Payment of the goods or services must be made within thirty days of the date of the invoice, unless otherwise specified on the invoice.
3.2 The Seller reserves the right to charge interest on the overdue sums at the rate of 4% per annum above the Base Rate for the time being at Lloyds Bank Plc calculated on a daily basis from the due date of payment in Clause 3.1 until the date upon which payment is made.
3.3 The Seller may at any time require the Buyer to make payment in advance of delivery or require security for payment.
3.4 If the Buyer fails to make payment by the due date or when required, the Seller may (without prejudice to any other remedy which it may have) cancel this contract and/or any other between the Buyer and the Seller and/or suspend delivery under this or any other contract until payment is made.
3.5 The Buyer will have no statutory or other right of set off.

4. Delivery
4.1 Delivery dates are approximate only and the Seller shall not be responsible for any loss or damage arising from any delay in delivering all or part of any goods ordered or delay in the provision of any services.
4.2 Without prejudice to Clause 4.1 the Seller will not be liable for any delay in delivery or non-delivery of goods or services or any other breach of these conditions caused by any circumstances beyond the Seller’s control including without limitation any Act of God, explosion, fore, flood, war, hostilities, accident, delay in delivery or non-delivery by the Seller’s suppliers, breakdowns or accidents to machinery, labour strike or dispute, order or decree of any court or action of any government authority, or any other causes or any circumstances beyond the Seller’s control ; on the occurrence of any of the above events the Seller reserves the right to cancel or suspend the whole of part of any delivery.
4.3 In the case of any order for goods of a type or description not normally held in stock by the Seller, and therefore specially made, ordered or imported by the Seller to meet such order, the Buyer will accept goods 10% more or 10% less than ordered, the total price of the order being correspondingly adjusted.

5. Returns
5.1 Goods which are supplied in accordance with the contract cannot be returned without prior authority from the Company. Returns shall be sent to the Company’s premises at the Customers own risk and expense. The Company reserves the right to refuse to accept such returns if they are deemed unfit for sale, i.e. damaged / used.
5.2 The Company also reserves the right to incur a 10% handling fee for any goods deemed `ordered in error` by the customer.

6. Risk and Property
6.1 Goods supplied to the Buyer will remain the property of the Seller until full payment in cash or cleared funds has been received by the Seller for those goods and for all other goods delivered or services supplied by the Seller to the Buyer in respect of which payment is outstanding.
6.2 Until title to the goods passes to the buyer.
6.2.1 The Buyer will hold those goods as the Seller’s bailee.
6.2.2 The Buyer will protect, store and identify the goods by reasonable means so that they can be recognised as the property of the Seller.
6.2.3 The Buyer may use the goods or sell them in the ordinary course of its business.
6.2.4 If the Buyer is in breach of any of its obligations to the Seller, or the order or the contract for the supply of goods is cancelled or capable of being cancelled under Clause 8 below, and provided the goods are still in existence and have not been resold, the Seller may (a) by notice to the Buyer require redelivery to it of the goods; and / or (b) with or without previous notice, retake possession of the goods and sell the goods. For the purpose of this clause the Buyer irrevocably authorises the Seller’s representatives to enter the premises on which the goods are situated and remove the goods at the Buyer’s expense.
6.3 Risk in all goods supplied to the Buyer will pass to the Buyer on delivery.

7. Inspection
7.1 If the goods or any of them are damaged or lost while in the custody of a carrier, the Seller will (at its option) either replace such goods, or refund to the Buyer the cost or price of them, but the Seller’s liability in connection with any such goods will not exceed the cost of replacement of them or the price paid by the Buyer for them.
7.2 The Seller will not by under any liability under 6.1 above unless the following conditions are strictly complied with;
7.2.1 In the event of non-delivery of a whole consignment of goods the Buyer must inform the Seller in writing within ten days of the date of the invoice.
7.2.2 In the case of damage to goods or loss of part of a consignment, the consignment must be inspected in the presence of the carrier. If any goods are damaged or lost the consignment note must be endorsed accordingly and the Buyer must notify the Seller within forty-eight hours of delivery, such notification to be continued in writing within the following five days.

8. Liabilities and Warranties
8.1 Nothing in this clause will be deemed to exclude or restrict the Seller’s liability for death or personal injury resulting from the Seller’s negligence.
8.2 If any goods supplied or processed or any services supplied or provided by or on behalf of the Seller prove on inspection to be defective in material or workmanship, the Seller will (at its option) replace the same or refund to the Buyer the price of the goods or services.
8.3 The Buyer will determine the suitability of the goods for its intended use and will not rely upon any representatives made by or on behalf of the Seller.
8.4 The Seller’s liability under these conditions shall never exceed the cost of replacement or the price paid by the Buyer for the goods or services.
8.5 The Seller will not be liable for any consequential or indirect loss or damage (whether for loss of profit or otherwise) costs, expanses or other claims for consequential compensation whatsoever suffered by the Buyer whether this loss or damage arises from a breach of duty, in contract or in tort or in any other way (including loss or damage arising from the Seller’s negligence).
8.6 Except as set out in these conditions, all warranties and conditions, whether express or implied, statutory or otherwise are excluded to the fullest extent permissible at law.

9 Termination
9.1 If there is appointed a Receiver, Administrator or Administrative Receiver of the Buyer’s property or assets or any part of them, or a court order is made or a resolution is passed for the winding up of the Buyer (except for the purpose of amalgamation or reconstruction) or if the Buyer commits any act of bankruptcy, or any bankruptcy petition is presented against the Buyer for any analogous proceedings under the law of any country outside the United Kingdom are commended). The Seller may by notice in writing to the Buyer or any part of them remaining unfulfilled.
10 Jurisdiction
10.1 All contracts between the Seller and the Buyer where the goods are shipped to or services are provided in the Republic of Ireland shall be governed and construed in accordance with the Laws of the Republic of Ireland and the Buyer agrees to submit to the jurisdiction of the Courts of Law in the Republic of Ireland in respect of them.
10.2 Except as provided above, all contracts between the Seller and the Buyer shall be governed and construed in accordance with the Laws of England and the Buyer agrees to submit to the jurisdiction of the Courts of Law in England in respect of them.

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