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AVOCADO RESEARCH CHEMICALS LIMITED
Trading as Alfa Aesar, now part of Thermo Fisher Scientific
Port of Heysham Industrial Park, Heysham, Lancashire LA3 2XY
Registered in England with number: 02682211
Registered Office: 3rd Floor 1 Ashley Road, Altrincham, Cheshire, WA14 2DT
VAT Registration No. GB 604 412 680
ALL ORDERS ARE ACCEPTED SUBJECT TO OUR STANDARD CONDITIONS OF SALE, A COPY OF WHICH IS REPRODUCED BELOW.
In these conditions the following expressions shall, where the context so admits, have the following meanings:
"United Kingdom" United Kingdom of Great Britain and Northern Ireland.
"overseas" all countries other than the United Kingdom (as defined).
"the goods" the goods which are the subject of this contract of sale or supply between us and the customer.
"business day" any day other than a Saturday, Sunday or a day which is a public or Bank Holiday in the United Kingdom.
The following conditions shall apply to all our contracts with customers except to the extent that they are varied in writing in the express terms of the contract. No other terms and conditions (including, for the avoidance of doubt, any terms and conditions stated on the customer's order) or any alteration, variation, amendment of or addition to these conditions shall be valid unless made in writing and signed by our authorised representative. The customer agrees that, in entering into this contract, it does not rely upon any express or implied representation made by any of our employees or agents or any representations made in any of our sales/ promotional literature and that such representations shall not form part of the contract or a collateral contract.
Acceptance of orders and completion of contracts are subject to such materials, components and services (including supplies from sub-contractors) and such specifications, information and other material being available or being made available as will enable us to proceed with and complete the contract and to continue manufacture without interruption.
We shall be entitled to take into account fluctuations in the cost of materials, components, labour and services, including services provided to us (such as gas, electricity, water, etc.) as well as services provided by us (such as metal handling and financing) at the date of despatch of the goods. Where a contract is for the sale of goods by a number of separate deliveries, we shall be entitled to take fluctuations in such costs into account up to the date of despatch of each delivery. Unless otherwise agreed:
4.1 products containing Gold or Silver will be charged at prices based on the next available market fixing following the receipt of the customer's order, or on a subsequent date at our discretion;
4.2 products containing Platinum Group Metals and/or metals other than Gold or Silver will be charged at the prices ruling either:
4.2.1 on the day of receipt of the customer's order, or where this is not possible on the next available business day thereafter; or next available business day thereafter at our discretion.
4.2.2 on the day of despatch of the goods or, where this is not possible, on the next available business day thereafter at our discretion. Unless otherwise stated, freight and insurance will be charged to the customer at the rates ruling on the day of despatch of the goods.
In the event that the customer instructs us to enter into forward purchasing contracts on its behalf then if at any time or times before the dates fixed for the performance of the contract:
5.1 the current market value of the metal, currency or sterling bought or sold on behalf of the customer is, in the case of a purchase, less than the contract price, or, in the case of a sale, greater than the contract price, we shall be entitled to call upon the customer to pay to us such sum of currency or sterling or to deliver to us such quantity of metal or other security by way of margin or further margin as does not exceed in value the amount by which the said current market value is less than or greater than the said contract price as the case may be. The customer shall pay the said sum of sterling or currency or deliver the said metal or other security to us within three days of our demand therefor;
5.2 the current market value of the currency, metal or other security provided by the customer by way of margin or further margin shall fall, we shall be entitled to call upon the customer to pay to us within three days of our demand therefor such sum of sterling or currency or to deliver to us such quantity of metal or other such security as is equal to the said fall in value.
The price shall be exclusive of any value-added, sales, excise, customs or other tax or duty payable on the sale of the goods, which shall be paid by the customer in addition to the price for the goods. Any customs duties or other charges, fines or assessments, whatsoever, levied on overseas customers in respect of the goods on importation shall be borne by such customers.
Although we will use our reasonable efforts to supply the exact quantity of goods ordered, the customer shall accept the supply of a quantity (whether more or less) within 5 per cent of the stipulated amount of its order. In such circumstances the invoice value of the goods shall be subject to a corresponding adjustment except where, in the case of sales overseas, such course shall be impracticable. Subject as aforesaid, the prices quoted are for the quantities and despatch conditions stipulated in our quotation and do not necessarily apply to other quantities or to different conditions of despatch.
Although we will use all reasonable efforts to meet our despatch forecasts, such forecasts are estimates only and, accordingly, time for delivery shall not be of the essence. We shall not in any circumstances whatsoever be liable (whether in contract, tort (including negligence) or otherwise) for any loss of profit or for any other loss, damage, expense, or injury suffered or incurred by the customer whether direct, indirect, contingent, consequential or special (whether for loss of business, depletion of goodwill or otherwise) arising our of, or in connection with, any delay in despatch. In the case of orders for despatch overseas, despatch will be conditional upon all necessary governmental or other consents governing the importation of goods into the country of destination being obtained by the customer prior to despatch.
We shall be entitled without prejudice to any of our other remedies to withhold delivery of any goods if either:
9.1 any amount is outstanding and overdue from the customer in respect of any invoice issued by us; or
9.2 upon the invoicing of such goods, the customer's credit limit (if any) with us would thereby be exceeded. In determining the customer's credit limit for such purposes, the aggregate invoice value of all invoices issued to the customer by us and which are then outstanding, including unpaid accounts, shall be taken into account.
10.1 The risk in the goods shall pass to the customer either:
10.1.1 on delivery by us or by our delivery agent or by a common carrier to the address specified by the customer; or
10.1.2 on delivery to the customer, the customer's servant or the customer's agent.
10.2 In the case of overseas sales, risk in the goods shall pass to the customer either under 10.1.1 or 10.1.2, or as agreed between ourselves and the customer. In this connection, trade terms (such as DAP and FOB) shall be interpreted according to Incoterms 2010 published by the International Chamber of Commerce.
11.1 Notwithstanding delivery of the goods to the customer and/or the passing of risk in the goods to the customer, until we have received full payment from the customer for all goods delivered to the customer pursuant to this contract the following terms shall apply:
11.1.1 the property in the goods supplied by us shall remain in us as legal and equitable owner and the customer shall be entitled to possession of the goods only which shall be held by the customer as a bailee on our behalf and the customer shall store the goods in such a way as to be identifiable as our property;
11.1.2 the customer shall keep the goods insured against all risks in their full replacement value and if requested by us shall execute an assignment in favour of us of all rights of the customer to claim against the insurers in respect of the goods covered by such insurance and shall join us in notifying such insurers of our interest in any policy effected hereunder;
11.1.3 notwithstanding the provisions of condition 11.1.1 the customer shall have a licence to sell (by way of bona fide sale at arm's length) the goods supplied by us to the customer which licence may be immediately terminated by us at any time by giving the customer written notice thereof provided that (without prejudice to any other right of ours) such licence shall automatically terminate if the customer (being an individual) becomes bankrupt or if the customer (being a company) adopts a resolution for its winding up or if any petition is presented for the appointment of an administrator or a receiver or an administrative receiver is appointed in respect of any part of the customer's undertaking or assets or if the customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (or any re-enactment or further enactment the same) unless we otherwise agree to the continuation of such licence;
11.1.4 the proceeds of any such sale and the benefit of any such contract of sale shall be held in trust for us absolutely and the customer shall forthwith pay all proceeds of such sales (but only to the extent of sums referred to us by the customer) into a bank account in its own name separate from all other monies of the customer and shall notify us thereof and the bank of our interest in such account. The proceeds of such sales paid into such bank account by the customer shall not be used by the customer but shall immediately be paid to us and notwithstanding that any period of credit extended to the customer by us (under this or any other contract) shall not have expired;
11.1.5 at any time after the termination of the above licence, we may repossess the goods (or any part of the goods) and for this purpose the customer grants to us an irrevocable licence to enter upon any premises of the customer, his servants or agents and to use such measures as may be reasonably necessary to gain access to such premises and recover possession of the goods; and
11.1.6 we or any person nominated by us shall at any time have full access to all the books of account and documents and papers of the customer relating to any one or more of the following:
(a) the customer's dealings with us;
(b) the customer's dealings with the goods; and
(c) the customer's dealings with the proceeds of sale of the goods.
11.2 Nothing in this condition shall confer any right upon the customer to return the goods or to refuse or delay payment for them.
11.3 For the avoidance of doubt nothing in this condition shall be construed as creating a lien or charge or any other form of security over any property of the customer or any third party.
Where requested to do so by the customer, we will, on the customer's behalf, arrange insurance to destination on every consignment of goods overseas at the customer's expense. Unless otherwise stated, the premium paid will cover the value of the consignment as shown on our invoice. Details of the insurance cover are available upon request. The arrangement of any additional insurance required by the customer is the customer's responsibility.
Where the risk in the goods has not passed to the customer, we will accept responsibility for damage in transit (by repairing or, at our option, replacing the goods) provided that we are given written notice of such damage within such time and in such manner as will enable us to comply with the carrier's conditions of carriage applicable to damage in transit and are given the opportunity to inspect the goods and on the condition that the customer shall make no further use of the goods and will not attempt to alter or repair the goods itself; and for non-delivery (by, at our option, recovering or replacing the goods within a reasonable time) provided that where we have notified the customer of despatch of the goods we are given written notice of non-delivery within such time and in such manner as will enable us to comply with the carrier's conditions of carriage applicable to non-delivery.
In the absence of agreed credit terms, we reserve the right to require payment in cleared funds prior to the dispatch of the goods. Where credit terms are agreed, our standard payment terms for customers within the United Kingdom are payment in full within 30 days after the date of the invoice by bank credit transfer in accordance with condition 15.2 below. Time for payment is of the essence.
15.1 Subject as provided in clause 14 and unless otherwise agreed, payment terms for customers overseas are payment in full within 30 days after the date of the invoice in the currency stated thereon. Time for payment is of the essence.
15.2 Unless otherwise stipulated, payment should be made by bank credit transfer to Natwest Bank, City of London Office, 1 Princess Street, London. EC2R 8BP; Bank Sort Code: 60-00-01; Account Number: 39740579; Account Name: Avocado Research Chemicals Limited
15.3 Exceptionally, where we agree that payment may be made in US$, payment must be made by bank credit transfer to JPMorgan Chase Bank, JPMorgan New York Branch, One Chase Manhattan Plaza, New York, NY10005; Account Number 958162736, BIC CHASUS33; Account Name: Avocado Research Chemicals Limited.
15.4 Exceptionally, where we agree that payment may be made in EURO, payment must be made by bank credit transfer to UniCredit Bank AG, Opernstraße 22, 95444 Bayreuth, Germany; SWIFT HYVEDEMM462, IBAN DE41760200700016653837; Account Name: Avocado Research Chemicals Limited.
15.5 Where we agree that payment may be made by irrevocable confirmed letter of credit, confirmation is required by a London clearing bank.
15.6 Payment must be made by the customer without deduction, set-off or counter-claim.
15.7 We may by written notice to the customer require payment to an alternative bank account as stipulated in that notice.
If the customer fails to make payment when due, the amount unpaid may, in our sole discretion, incur interest at the rate of 4 per cent per annum above the base rate of Lloyds Bank plc from time to time from the date of the invoice to the date of actual payment (both before as well as after judgement).
Without prejudice to any other remedies we may have in respect of unpaid debts due to us from customers we shall have a general lien on all such customers' goods or property in our possession (whether worked on or not) and we shall be entitled, on the expiration of 21 days' notice in writing to the customer, to dispose of such goods or property as we think fit and to apply any proceeds received towards such debts.
To assist customers in carrying out their statutory obligations, our material safety data sheets and/or product labels give warnings of known hazards associated with the goods and our sales literature states their properties. However, almost all materials may be hazardous in certain conditions or if handled without due care. In particular, the customer warrants and agrees that only qualified and trained individuals will handle the goods. Goods should be stored away from sources of heat and care should be taken to avoid contact with the skin, eyes or mucous membranes. Appropriate ventilation should be provided and protective clothing worn.
19.1 Although we use every effort to ensure that all goods are manufactured to specification, it is in all cases, including repeat orders, for the customer to ensure by tests or otherwise, that the goods are fit and suitable for the purpose for which the customer requires them in the conditions in which they will be used. We accept no liability for misuse of the goods or failure of the customer to carry out its statutory obligations. Purity values, where quoted, are typical figures and may vary from batch to batch. Reasonable variation from purities quoted shall not be deemed to be non-conformance to specification.
19.2 Any customer who claims that goods are defective as regards materials or workmanship must give us written notice to that effect giving details of the alleged defect and, if requested by us, return the goods to us properly packed, carriage paid within 30 days of the date of receipt of the goods.
19.3 We will replace goods which we accept are defective either as regards materials or workmanship provided that they have not been tampered with or subjected to improper treatment and provided that the defects are not as a result of faulty design or incorrect specification by the customer. Goods returned to us and replaced shall become our property.
19.4 Subject to condition 19.5 and notwithstanding anything contained in these conditions and/or any contract, our liability in contract, tort (including negligence and breach of statutory duty) or otherwise arising from or in connection with any contract and/or the supply, purported supply and/or failure to supply the goods shall under no circumstances exceed the purchase price of the goods that are the subject of (or shall give rise to) the claim in question.
19.5 We shall not in any circumstances whatsoever be liable (whether in contract, tort (including negligence,or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof, for (i) for any increased costs or expenses (ii) for any loss of profit, business, contracts, revenues and/or or anticipated savings and (iii) for any indirect, contingent, consequential and/or special loss or damage of any nature whatsoever.
19.6 Nothing contained in these conditions shall be construed so as to exclude our liability for death or personal injury caused by our negligence or for fraud.
19.7 Goods supplied are intended for laboratory research and development purposes. In particular, for the avoidance of doubt, no warranty is given as to suitability for food, drug, agricultural, cosmetic or household use. This condition 19 is in substitution for and (to the extent permitted by law) excludes all conditions, warranties and terms as to satisfactory quality and fitness whether express or implied and whether conferred by statute, common law or otherwise provided that nothing in this condition shall exclude or limit our liability for fraudulent misrepresentation. We reserve the right, at our sole discretion, to limit sales of goods or not to sell goods to any customer, notwithstanding the receipt and acceptance of an order. Notwithstanding the generality of the foregoing, we reserve the right not to deliver goods to private individuals and/or to what is or may appear to be a residential address.
The customer represents and warrants that its use of goods ordered will not violate any law or regulation. In consideration of the sale of the goods to the customer, which sales we would not otherwise make, the customer agrees to indemnify and hold us harmless from all claims, expenses, losses and liability of any nature whatsoever arising out of the customer's handling and/or use of goods, whether used alone or in combination with any other substance or the customer's failure to perform its obligations hereunder, including with respect to any claims brought by the customer's officers, employees, customers, agents, representatives, successors or assigns, or any third party (including without limitation, end users or freight. carriers).
The customer acknowledges that all goods purchased or received from us are subject to export control laws, restrictions, orders, rules and regulations of the UK and foreign agencies or authorities (collectively, Export Laws). The customer represents and warrants that it will comply with all applicable Export Laws, and shall not export, divert, re-export, transship or transfer to any prohibited or embargoed country, restricted party or otherwise in contravention of such Export Laws. The customer represents and warrants that it is not on any restricted party list maintained by the UK Government and is not prohibited by applicable law from purchasing any goods hereunder. The customer shall be responsible for determining its compliance obligations, including obtaining any export licenses or approvals required by the UK Government or governments of other countries.
In order to avoid orders being duplicated, all orders that are merely confirmations of orders previously placed must clearly indicate that fact, for example, by being prominently overstamped "Confirmation Order. Do Not Duplicate". We reserve the right to treat any confirmation order that is not so marked as a separate order.
Where the customer supplies us with metal or other materials or parts for processing, unless otherwise agreed our liability for loss and/or damage shall, in no circumstances, exceed three times the contract price for processing and no claim will be considered for an amount of less than 2.5 per cent of the value of the free issue materials as received by us. The customer must notify us in writing of the value of such materials at the time of despatch to us of the materials.
Special arrangements may be made for customers to retain exclusive use of designs or patterns but all property rights in all plant, tools dies, jigs and other special equipment used in the manufacturing process shall remain ours whether or not a charge is made towards their cost.
25.1 No order for goods may be cancelled or varied by the customer without our written agreement. If the customer purports to cancel or vary his order without such agreement or refuses to accept delivery and at the time of such purported cancellation or variation or refusal the market price of any item purchased by us for the execution of the order is lower than the price at which we acquired the same, then, without prejudice to any other contractual rights that we may have, we shall be entitled to charge the customer the difference. In addition, we shall be entitled to charge the customer the full cost of manufacture incurred by us up to the date of the purported cancellation, variation or refusal of any goods manufactured to the customer's order, including the costs incurred by us in respect of all items ordered, supplied or manufactured specifically for execution of the order in question. In such circumstances we shall be entitled to store the goods at the customer's cost and to dispose of the goods on such terms as we see fit to any third party.
25.2 If work on an order is suspended because of the customer's instructions or lack of instructions, we reserve the right to treat such circumstances as a cancellation by the customer and the provisions of this condition 25 shall apply.
We shall be entitled to cancel the contract by written notice and to suspend all future deliveries without prejudice to any other rights which we may have if:
26.1 the customer shall commit a material breach of this contract;
26.2 the customer shall go into liquidation or be declared bankrupt;
26.3 the customer shall have an administration order made against it;
26.4 a distress or execution is levied or enforced upon any of the property or assets of the customer and is not paid out or discharged within 14 days;
26.5 an encumbrancer takes possession or a receiver is appointed over the undertaking of the customer or any of his property or assets;
26.6 the customer stops payment or ceases or threatens to cease to carry on his business or to pay his debts as and when they fall due; or
26.7 if the equivalent of any of the foregoing occurs in any jurisdiction.
27.1. We shall not be liable to the customer or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the goods, if the delay or failure was due to any cause beyond our reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control:-
27.1.1 act of God, explosion, flood, tempest, fire or accident;
27.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
27.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
27.1.4 import or export regulations, embargoes and/or sanctions (whether UN, EU and/or US sanctions or otherwise);
27.1.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving our employees or those of a third party);
27.1.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
27.1.7 power failure or breakdown in machinery.
28.1 We accept no liability (to the extent permitted by law) for any claims made against the customer for any infringement of patent, registered or unregistered designs, copyright, trade names, trade marks or other intellectual property rights of any third party in connection with the use, possession, resale or offering for resale of the goods either as originally sold by us or otherwise;
28.2 Where we execute the order in accordance with the customer's designs, plans or specifications, the customer shall indemnify us against all actions, losses, damages, expenses, cost or other liabilities (including legal fees) arising from any claims made against us for infringement of any third party's patent, registered or unregistered designs, copyright, trade names, trade marks or other intellectual property rights arising therefrom.
28.3 Nothing contained herein shall be construed as, or operate to grant, any licence to the customer in respect of any of our existing or future patent rights, registered or unregistered designs, copyright, trade names, trademarks or other intellectual property rights.
Where the contract is for the sale of goods by a number of separate deliveries to be separately paid for, a breach affecting one delivery shall not affect any other, provided that for so long as payment for any delivery has become due and is unpaid, we shall not (without prejudice to our rights under condition 26) be liable pending payment to make any further delivery pursuant to the contract.
The headings to the paragraphs of these conditions are inserted for convenience of reference only and shall not affect their interpretation.
Each of the foregoing conditions is to be constructed as a separate provision applying and surviving even if for any reason one or other of the said conditions is held void or unenforceable in any circumstances.
The waiver by us of any breach of any of these conditions shall not prevent the subsequent enforcement of that condition and shall not be deemed to be a waiver of any subsequent breach of that or any other condition hereof.
Any notices required to be served hereunder may be given by first-class post to the parties at their registered office for the time being or the last known place of business and any notice so given shall be deemed served, in the case of UK customers, 48 hours after it has been posted and, in the case of overseas customers, 5 days after it has been posted, and in proving such service it shall be sufficient to prove that the notice was properly addressed and posted as a pre-paid envelope.
The customer will not in connection with the order or the goods purchased or to be purchased under it, offer, pay, promise to pay, or authorize the giving of any financial or other benefit to any person for the purpose of obtaining an improper advantage, or otherwise conduct itself in a manner contrary to the UK Bribery Act, FCPA or other applicable anti bribery laws. We may terminate the order immediately upon written notice where the customer is found to have breached this condition, and the customer shall indemnify us from all damages, penalties, fines and/or costs of any kind arising from, or relating to, any such breach.
The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to any contract to which these terms and conditions apply.
The construction, validity and performance of all our contracts shall be governed by English Law and by the non exclusive jurisdiction of the English Courts.