Millers Oils Limited – Terms of Sale May 2018 Edition 2 – 30EOM

1. Definitions
1.1. In these terms, “Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business; “Buyer” means the person, firm or company whose details are set out in a Quotation or shown in an Order (as the case may be); “Contract” means the contract between the Seller and the Buyer in relation to the supply of the Goods or Services from the Seller to the Buyer; “Goods” means the goods to be supplied by the Seller to the Buyer as set out in a Quotation or shown in an Order (as the case may be); “Group Company” means in respect of either party, any subsidiary or holding company of either party as such terms are defined by Section 1159 of the Companies Act 2006; “Order” means an order sent to the Seller by the Buyer; “Order Confirmation” means a written confirmation acknowledging the Order; “Premises” means Hillside Oil Works, Rastrick, HD6-3DP; “Quotation” means a quotation issued by the Seller and accepted by the Buyer by way of submission of an Order; “Seller” means Millers Oils Limited (Registered Number : 00137671) whose registered office is at Hillside Oil Works, Rastrick Common, Brighouse, West Yorkshire, HD6 3DP or any Group Company of Millers Oils Limited to which an Order is sent and “Services” means oil filtration and oil sampling services as set out in the Order Confirmation.

2. Basis of Sale
2.1. An Order shall be accepted entirely at the discretion of the Seller on the basis of these terms as amended from time to time. The Buyer’s order will be accepted on the earlier of (1) an Order Confirmation issued by the Seller; (2) on delivery of the Goods to the delivery address shown in the Order; (3) upon collection of the Goods by the Buyer from the Seller’s Premises; at which point and on which date the Contract shall come into existence. Acceptance is subject to the receipt by the Seller, of satisfactory results following credit checks.
2.2. Each Order which is accepted by the Seller shall constitute a separate legally binding contract between the Seller and the Buyer.
2.3. The Seller shall supply the Services to the Buyer in accordance with the Order Confirmation and shall use all reasonable endeavours to meet any dates for the Services specified in the Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
2.4. Subject to any variation under clause 2.5 below, the Contract shall be on these terms to the exclusion of all other terms that the Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
2.5. No addition, alteration or substitution of these terms (including any terms proposed by the Buyer to the Seller whether in an Order or otherwise) will bind the Seller or form any part of any contract unless they are expressly accepted in writing by a person authorised to sign on the Seller’s behalf such as a Director or Credit Control.
2.6. The Seller’s employees or agents are not authorised to make any representation with regard to the subject matter of the Contract unless authorised by a member of the Board. In entering into the Contract, the Buyer acknowledges that if it relies on any representation, advice or recommendation given by the Seller, its employees or agents to the Buyer as to the use of the Goods and/or Services, it does so entirely at the Buyer’s own risk.

3. Price and Payment
3.1. The price for the supply of the Goods and/or Services shall be the Seller’s price as set out in the Quotation or the Seller’s notified price, current at the date of acceptance of the Order (as the case may be). Any quotation given to the Buyer by the Seller, is not an offer and is only valid for such period stated therein, or in the absence of any stated period, for 30 (thirty) days only from its date of issue, after which it may be altered by the Seller without giving notice to the Buyer.
3.2. The Seller reserves the right by giving notice in writing to the Buyer at any time before delivery, to increase the price for the Goods and/or Services, to reflect any increase in cost to the Seller which is beyond the control of the Seller (including, without limitation, any foreign exchange fluctuations, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specification requested by the Buyer, or which is due to any failure by the Buyer to give the Seller adequate information or instructions.
3.3. All prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall (unless otherwise agreed by the Seller) be liable to pay the Seller’s charges for transport, packaging and insurance.
3.4. The price of the Goods and/or Services is exclusive of any applicable value added tax, which the Buyer shall pay to the Seller in addition.
3.5. The Seller shall be entitled to invoice the Buyer for the price of the Goods and/or Services at any time following delivery or collection of the Goods or the provision of Services, unless the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the full amount at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
3.6. The Buyer shall pay the price for the Goods and/or Services on or before the 30th day of the month following the month of invoice (30EOM) for the Goods and/or Services (unless otherwise agreed in writing) and the Seller shall be entitled to recover the price notwithstanding that title in the Goods has not passed to the Buyer.
3.7. The time of payment for the price of the Goods is of the essence of the Contract. The Buyer shall not be able to withhold payment for the price of the Goods in the event that the invoice does not include the Buyer’s order number or similar information.
3.8. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
3.8.1. terminate the Contract or suspend any further deliveries to the Buyer;
3.8.2. appropriate any payment made by the Buyer to such Goods supplied under any contract between the Buyer and the Seller, as the Seller may think fit notwithstanding any purported appropriation by the Buyer; and
3.8.3. claim interest and/or compensation for reasonable debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002 or any other regulations from time to time.
3.9. In the event that the Seller is, for whatever reason, unable to claim interest and/or compensation under the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002 or any other regulations from time to time, the Seller reserves the right to charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 2% above the base lending rate of National Westminster Bank plc in force at that time, accruing on a daily basis until payment is made in full.
3.10. In the event that the Buyer submits a cheque or other payment in respect of the Seller’s invoice and such cheque or other payment is subsequently dishonoured or rejected by the bank of either the Seller or the Buyer, the Seller may (notwithstanding the rights granted to the Seller pursuant to clauses 3.8 and 3.9 hereof or any other remedies available to the Seller) recover any additional costs, charges or expenses incurred by it in relation to such cheque or other payment from the Buyer which the Buyer agrees to pay immediately upon request.
3.11. All payments payable to the Seller under this Contract shall become due immediately on its cancellation by the Seller despite any other provision.
3.12. The Seller may at any time, without notice to the Buyer, set off any liability of the Buyer to the Seller or any Group Company of the Seller, against any liability of the Seller or any Group Company of the Seller to the Buyer, whether any such liability is present or future (howsoever arising), liquidated or unliquidated, under this Contract or not. For the avoidance of doubt, this right of set off shall apply to monies held by the Seller by way of deposit in accordance with clauses 5.10 and 5.11. Any exercise by Seller of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this Contract or otherwise.
3.13. The Seller may provide a credit facility to the Buyer upon request and in doing so, the Buyer agrees to the Seller carrying out credit checks with reputable credit reference agencies. Credit facilities are subject to satisfactory credit checks and the Seller reserves the right to withdraw or amend credit facilities at any time. 

4. Specification
4.1. The Buyer will check that the terms of any Order including the Order Confirmation issued by the Seller, and any specification submitted by the Buyer, are correct and accurate. In particular, the price and quantity of the Goods should be checked immediately as these may fluctuate.
4.2. The quantity, quality, description of and any specification for the Goods and/or Services shall be as expressly set out in the Quotation or as otherwise notified to the Buyer by the Seller (as the case may be) and no other specification or any other material shall form part of or be incorporated by reference into the Contract unless expressly agreed otherwise in writing by the Seller.
4.3. The Seller reserves the right to make changes in the specification of the Goods and/or Services which are required to conform to any applicable statutory or regulatory requirements and which do not materially affect quality or performance.
4.4. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all losses, liabilities, damages, costs and expenses suffered, awarded against or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which result from the Seller’s use of the Buyer’s specification. Clause 4.4 shall survive termination of the Contract and remain in full force and effect.
4.5. The Buyer warrants that any drawing, design, instruction or specification given to the Seller by or on its behalf shall not infringe any intellectual property rights of any third party. The Buyer acknowledges that all intellectual property rights in any documents produced by the Seller shall be owned by the Seller.
4.6. If, as a result of any breach of third party intellectual property rights caused due to the Seller’s compliance with the Buyer’s instructions, the Seller is obliged to pay any additional cost or royalty in order to supply the Goods and/or Services, the Seller shall be entitled to increase the price payable by the Buyer by the amount thereof and the Seller shall pay the same in accordance with the terms of clause 3.

5. Delivery
5.1. Delivery of the Goods and/or supply of the Services shall be made by the Seller (or carrier) to the Buyer’s premises or an alternative address as agreed by the Seller, or, Goods may be collected by the Buyer from the Brighouse Trade Counter, or subsequent Depot in Glasgow.
5.2. Time for delivery shall not be of the essence of the Contract and any date quoted for delivery of the Goods is approximate only and the Seller shall not be liable for any delay in delivery or supply however caused.
5.3. The Seller may deliver the Goods in advance of the quoted date upon giving reasonable notice to the Buyer.
5.4. Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 10% (ten per cent) more or 10% (ten per cent) less than the quantity ordered and make a proportional reduction or increase (as the case may be) in the price of such Goods which the Buyer agrees to pay. The Seller shall not be liable under the Contract or otherwise to the Buyer for any reduction in quantity delivered when compared against the quantity ordered by the Buyer.
5.5. The Seller shall not in any way be responsible for checking or testing the Buyer’s tank. Any tank into which Goods are to be delivered shall have sufficient capacity to hold the quantity of Goods supplied. Subject to clause 5.4, the Seller may deliver 10% more or less than the Goods ordered and the Buyer shall provide sufficient capacity for all Goods delivered. The Buyer shall be solely responsible for ensuring that the Goods are delivered into the correct receiving tank and, prior to delivery, the Buyer shall ensure any tank to which goods are to be delivered are of required standards and have sufficient capacity to hold the quantity of the Goods being delivered.
5.6. The Seller shall not in any way accept any responsibility for any damage loss, claim or other liability whatsoever caused by or resulting from the failure on the part of the Buyer to comply with either of clauses 5.4 and/or 5.5 above.
5.7. The Buyer will upon taking delivery of the Goods, be required to sign a “Clearance to discharge bulk product delivery” form before delivery commences and shall at all times provide sufficient supervision by duly authorised and trained personnel to ensure the delivery of Goods is completed in safe and secure conditions and with no risk of harm or any health and safety risk to any of the Seller’s employees, staff or other personnel.
5.8. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these terms or any claim by the Buyer in respect of any one or more instalments, shall not entitle the Buyer to treat the Contract as a whole, as repudiated.
5.9. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate instructions for delivery then, without prejudice to any other right or remedy available to the Seller, the Seller may:
5.9.1. store the Goods until actual delivery and charge the Buyer for reasonable costs (including insurance) of storage; or
5.9.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the Contract price.
5.10. All barrels and other packaging materials that are supplied by the Seller on loan will carry a deposit charge that shall be added to the price of the Goods at the rate notified by the Seller to the Buyer from time to time.
5.11. All such barrels and other packaging materials are the property of the Seller and subject to the set off provisions of clause 3.12, the applicable deposit charge will be credited to the Buyer upon the full return to the Seller (or as the Seller may direct) of such barrels and related packaging materials in good condition and at the expense of the Buyer.
5.12. The Buyer agrees that the barrels and related packaging referred to in clauses 5.10 and 5.11 above shall be used by the Buyer for the storage of the Goods only and no other third-party products or materials and further the Buyer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods.
5.13. The Seller reserves the right on giving reasonable notice, to inspect the barrels and related packaging materials supplied to the Buyer during working hours at the Buyer’s premises or such other premises where the Goods are stored, for the purpose of ascertaining the Buyer’s compliance with the provisions of clause 5.11 and 5.12 above.
5.14. In the event that the Contract is terminated in accordance with the provisions of clause 8.1 and 8.2 below then the Buyer shall immediately return the barrels and related packaging to the Seller with the return of the deposit in accordance with clause 5.11 above, save where the right of set off in clause 3.12 has been enforced by the Seller.
5.15. Where the Buyer places an order for Goods with the Seller, the Seller will not at any time accept returned Goods unless such return has previously been agreed in writing by the Seller and subject to the following conditions:
5.15.1. payment of a re-stocking charge of 15% of the price of the returned Goods shall be paid by the Buyer; and
5.15.2. returned Goods will only be accepted in a resalable, uncontaminated and useable condition and acceptance shall be at the sole discretion of the Seller.
5.16. The Seller shall supply the Services to the Buyer in accordance with the Order Confirmation and the time and date specified therein.
5.17. The Buyer shall provide the Seller with such information and materials as the Seller may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects.

6. Risk and Title
6.1. Risk (responsibility) for the Goods shall pass to the Buyer:
6.1.1. where the Goods are to be delivered at the Seller’s premises, upon delivery; or
6.1.2. where the Goods are to be collected, upon collection; or
6.1.3. where the Goods are to be delivered otherwise than at the Seller’s premises, at the time of delivery; or
6.1.4. where the Buyer wrongfully fails to take delivery of the Goods, at the time when the Seller has tendered delivery of the Goods; or
6.1.5. where the Seller is arranging for transport of the Goods, at the point when the Goods (or the first item thereof) are loaded on to the transport provided by a third party for delivery to the Buyer’s nominated delivery location.
6.2. Ownership (title) of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds, payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer or any of the Buyer’s Group Companies (including any interest accruing or owing to the Seller) for which payment is then due on any account of the Buyer or any of the Buyer’s Group Companies has with the Seller or the Seller’s Group Companies from time to time.
6.3. The Seller shall be entitled to seek payment for the price of the Goods and/or Services once payment has become due.
6.4. Until title of the Goods has passed to the Buyer pursuant to these terms:
6.4.1. the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and to the order of the Seller;
6.4.2. the Buyer shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected, insured against all risks for their full price (from the date when the risk in the Goods has passed to the Buyer in accordance with clause 6.1) and identified as the Seller’s property;
6.4.3. the Buyer shall not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;