1.0 Definitions & Interpretation.
Where used in these Terms and Conditions of Contract:
“Conditions” means these Terms and Conditions of Contract or any such successor standard terms and conditions that the Purchaser is notified are in full force and effect as of the date of a Contract. “Contract” means an agreement for the purchase and sale of Products by Calgaz to the Purchaser following Calgaz issuing a Purchase Order Acknowledgement in accordance with the Conditions.
Insolvency Event: means, in the case of a corporate entity, proceedings are threatened or commenced in relation to the winding up of that corporate entity, or in the case of an individual or partnership, proceedings are threatened or commenced in relation to the
bankruptcy of that individual or partnership, or in the case of any party, that person or corporate entity suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts.
“Price” means the price payable for the Products as set out in the Purchase Order Acknowledgement.
“Product(s)” means the products (or any part of them) set out in the Purchase Order Acknowledgement
“Purchase Order” means an order place by the Purchaser to purchase Products from Calgaz pursuant to these Conditions.
“Purchase Order Acknowledgement” means the written acceptance of the Purchase Order by Calgaz that creates the Contract pursuant to these Conditions
“Purchaser” means any individual person, entity, company, firm or organisation that purchases Products from CALGAZ for use in its business or the business of a third party.
“Calgaz Material Data Safety Sheets” means the material data safety sheet supplied by Calgaz to the Purchase with the Products.
“Calgaz Quotation” means the written quotation provided by Calgaz to the Purchaser, setting out the Prices and the specification of the Products.
“UK” means the United Kingdom.
2.0 Basis of Contract
2.1 A binding Contract shall only be created between the parties, when Calgaz issues the Purchaser with a Purchaser Order Acknowledgement.
2.2 The Purchase Order Acknowledgement shall be read in conjunction with these Conditions, the two documents forming a definitive Contract.
2.3 Any variation to these Conditions must be detailed in writing on the Purchase Order Acknowledgement, for the variation to form part of the Contract. The Contract is the complete and exclusive statement of the agreement between the parties relating
to the subject matter of the Contract and supersedes all previous communications, representations and arrangements, written or oral. The Purchaser acknowledges that no reliance is placed on any representation made but not embodied in the Contract.
2.4 Notwithstanding the foregoing, the provision of the Calgaz Quotation, or any other information shall not be considered an offer by Calgaz to sell the Products at those prices, or subject to any other terms and conditions. Only a Purchase Order submitted by
the Purchaser shall constitute an offer to contract subject to these Conditions.
2.5 These conditions shall be incorporated into the Contract to the exclusion of any terms or conditions stipulated or referred to by the Purchaser, or which might otherwise be implied by trade, custom, practice or course of dealing.
3.0 Prices
3.1 All amounts of money referred to in the Contract shall be interpreted as being amounts exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Purchaser is required under any applicable law to withhold or deduct any amount from the payments due to Calgaz, the Purchaser shall increase the sum it pays to Calgaz by the amount necessary to leave Calgaz with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
3.2 Prices, quoted “ex works” shall require the Purchaser to insure and transport the Product from the “point of despatch”. The “point of despatch” shall be as detailed on the Purchase Order Acknowledgement.
3.3 Prices quoted FOB (Free on Board) shall require Calgaz to provide appropriate UK or export packing and transportation of the Product to an agreed “destination” in the UK. If the destination is outside the UK the “destination” shall be given on the Purchase Order Acknowledgement as the UK “port of despatch”.
3.4 Prices quoted “CFR” (Carriage and Freight), shall require Calgaz to provide appropriate UK or export packing and transportation of the Product to the agreed “destination”. If the “destination” is outside the United Kingdom, the “destination” shall be given on the Calgaz Quotation / Purchase Order Acknowledgement as the “port of entry”.
3.5 Quotations issued by Calgaz, unless otherwise stated in them shall be open for acceptance within 90 days of the date of the quotation. A quotation given by Calgaz shall not constitute an offer, and Calgaz reserves its right to change the quotation after
it has been issued.
4.0 Terms of Payment
4.1 The Purchaser shall pay Calgaz for the Products in accordance with the provisions of this clause 4.
4.2 Calgaz shall invoice the Purchaser for the Price of the Products at the point of despatch from Calgaz.
4.3 The Purchaser shall pay to Calgaz the total amount of each Invoice within 30 days after the date of the relevant Invoice (unless
otherwise stated on the Calgaz Quotation / Purchase Order Acknowledgement), notwithstanding that delivery may not have taken place and that title to the Products has not passed to the Purchaser.
4.4 The time for payment shall be of the essence and no payment shall be deemed to have been made until the Calgaz has received payment in cleared funds.
4.5 If the Purchaser does not make payment on or before the date on which it is due, interest shall be payable on the overdue amount at the rate of 5% above the base rate of Barclays Bank Plc from time to time. Interest shall be payable at this rate both
before and after any judgment is made against the Purchaser until the date on which payment in cleared funds is received in full, including all accrued interest.
4.6 The Purchaser shall make all payments due under this agreement without any deduction by way of set-off, counterclaim, discount or otherwise unless the Purchaser has a valid court order from a court in England and Wales requiring an amount equal to or more than such deduction to be paid to Calgaz by the Purchaser, or unless such rights relied on cannot be excluded by the law of England and Wales or the insolvency laws of the jurisdiction in which the Purchaser is resident.
4.7 If payment for the Product on one contract with the Purchaser is overdue, Calgaz reserve the right to withhold or suspend performance of their obligations on other contracts with the same Purchaser.
5.0 Import & Export Licences, Taxes and Duties, Deliveries and Collections
5.1 The Purchaser is responsible for obtaining (at its own cost) such import licences and other consents in relation to the Products as are required from time to time and, if required by Calgaz, the Purchaser shall make those licences and consents available to
Calgaz prior to the relevant shipment.
5.2 The Purchaser shall pay all Taxes, Excise Duty and other Government Imposts levied at the “port of entry” and / or in forwarding the Product to its final destination unless stated otherwise on the Purchase Order Acknowledgement.
5.3 The Purchaser shall be responsible for Customs Clearance and the cost of forwarding the Product to its final destination unless stated otherwise on the Purchase Order Acknowledgement.
5.4 It is the Purchaser’s obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by law or by governmental and other authorities or corporations relating to the possession, use, import, export, or resale of the
Products. It is the Purchaser’s obligation to ensure that no Products are exported or imported in violation of the laws of any jurisdiction into or through which the Products are transported during the course of reaching the delivery destination. Where necessary, the Purchaser shall inform Calgaz at a reasonable time before delivery of any documents which it is necessary for Calgaz to provide in order to allow export of the Products in compliance with the laws of any relevant jurisdiction.
5.5 Calgaz arranges all deliveries of the Products unless advised otherwise by the Purchaser. If the Purchaser is arranging collection of the Products, it is the Purchaser’s responsibility to ensure all carriers used are licensed to carry Dangerous Goods under the appropriate Legislation. If the selected carrier refuses collection from Calgaz because they are not approved for Dangerous Goods or on any other grounds, the Purchaser may be liable for an administration fee (to be defined by Calgaz) and for any courier costs incurred by Calgaz if Calgaz is then required to arrange delivery on behalf of the Purchaser.
5.6 Calgaz reserves to right to refuse collection of goods from the Calgaz site by any company at its own discretion.
6.0 Title and Risk
6.1 The risk in the Products shall pass to the Purchaser on completion of delivery of delivery of the Products to the Purchaser (or otherwise as stated within the Purchase Order Acknowledgement.) SAVE THAT it is agreed that:
(a) Prices, quoted “ex works” risk shall pass to the Purchaser from the “point of despatch” (as detailed on the Purchase Order
Acknowledgement); and
(b) Prices quoted FOB (Free on Board) risk shall pass to the Purchaser at an agreed “destination” in the UK. If the destination is outside the UK the “destination” shall be given on the Purchase Order Acknowledgement as the UK “port of despatch”.
6.2 Title to the Products shall not pass to the Purchaser until Calgaz has received payment in full (in cash or cleared funds) for the Products.
6.3 Until title to the Products has passed to the Purchaser, the Purchaser shall:
(a) hold the Products on a fiduciary basis as Calgaz’s bailee;
(b) store the Products separately from all other Products held by the Purchaser so that they remain readily identifiable as Calgazs property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify Calgaz immediately if it becomes subject to an Insolvency Event; and
(f) give Calgaz such information relating to the Products as Calgaz may require from time to time, but the Purchaser may resell or use the Products in the ordinary course of its business.
6.4 If before title to the Products passes to the Purchaser the Purchaser becomes subject to an Insolvency Event, or Calgaz reasonably believes that any such event is about to happen and notifies the Purchaser accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Calgaz may have, Calgaz may at any time require the Purchaser to deliver up the Products and, if the Purchaser fails to do so promptly, enter any premises of the Purchaser or of any third party where the Products are stored in order to recover them.
7.0 Quality Standards and Claims
7.1 Calgaz shall meet the quality standards for the Product as detailed in the Purchase Order Acknowledgement.
7.2 If Calgaz fail to meet the specified quality standard for the Product, the exclusive remedy under the Contract shall be for Calgaz to replace the defective Product.
7.3 The Purchaser shall register a claim for any such defective Product by writing to Calgaz within 15 days of the defective Product being delivered to the Purchaser.
8.0 Containers and Cylinders
8.1 Unless stated otherwise all cylinders provided to the Purchaser will remain the property of Calgaz and as such the Purchaser will be charged a monthly rental per cylinder.
8.2 The Purchaser should also be aware that cylinders provided for rental are subject to “Calgaz Rental Terms and Conditions”, which are provided to the Purchaser with the Purchase Order Acknowledgement and can otherwise be seen on our website
http://www.calgaz.com
8.3 Cylinders despatched to the Purchaser that are identified as sold outright to the Purchaser or are non-refillable cylinders shall become the property of the Purchaser who should arrange to dispose of them compliance with the laws and regulations of any relevant jurisdiction.
9.0 Cancellation Policy
9.1 All requests for cancellation or return of goods are at Calgaz discretion, and may be refused.
9.2 Unless you have an agreement to ship hazardous materials with your shipper, we cannot receive both empty and non-empty cylinders.
9.3 Returns may be accepted within 30 days. After 30 days from purchase we can not offer you a refund or exchange.
9.4 For orders being held after 30 days there will be a 10 USD/EURO/GBP charge per cylinder per week.
9.5 To be eligible for a return, your item must be unused and in the same condition that you received it. It must also be in the original packaging.
9.6 Orders or items cancelled within 24 hours of receipt of order will incur no charges..
9.7 Orders or items cancelled after 24 hours of receipt of order but before manufacturing is complete – the Customer will be charged 25% of the value of the cancelled items.
9.8 Orders or items cancelled after manufacturing is complete but before despatch – the Customer will be charged 75% of the value of the cancelled items.
9.9 Orders or items cancelled after despatch – the Customer will be charged 100% of the value of the cancelled items, and the cost of freight.
10.0 Force Majeure
10.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable
control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or
transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10.2 A claim under this clause 9 shall be made within 7 days of the occurrence of the event, together with the anticipated impact of the event on the future performance of the contract.
11.0 Purchasers Liability for Product Hazards
11.1 Calgaz advise that there are hazards associated with the use of the Product. Calgaz stress that the Purchaser shall be responsible for warning, training and protecting his employees and others, who may be exposed to such hazards arising from
the transportation, storage, and use of the Product.
11.2 Under no circumstances shall the Purchaser remove or modify any Calgaz safety instruction, label or marking associated with the Product.
11.3 The Purchaser shall accept full liability for loss, damage or injury to persons or property arising from the transportation, storage and use of the Product when used singly or in combination with other substances.
11.4 Calgaz will not accept any claim or expense claim in respect of late delivery whether direct, indirect or consequential resulting from the late delivery of any products.
11.5 Subject at all times to clause 10.8 below, the Purchaser shall protect, indemnify and save harmless, Calgaz and its employees against any claim from the ultimate user of the Product.
11.6 Except for a claim made pursuant to clause 7, Calgaz shall not be liable to the Purchaser, 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.
11.7 Calgaz’s total liability to the Purchaser 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, the price of the Products.
11.8 Nothing in these Conditions shall limit or exclude Calgaz’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); fraud or fraudulent misrepresentation; or
(b) any matter in respect of which it would be unlawful for Calgaz to exclude or restrict liability.
12.0 Material Data Safety Sheets
It is an absolute requirement that the Purchaser shall distribute the Calgaz Material Data Safety Sheets to all employees and others who transport, store or use the Product
13.0 Limitations in use of the Product
13.1 The Product supplied by Calgaz is intended for ultimate use by commercial / industrial users who have persons trained and experienced in the use and maintenance of the Product.
13.2 The Products supplied by Calgaz are not intended to be used by private individuals.
13.3 Purchasers who are resellers are not authorised to resell the Product to private individuals.
13.4 None of the Gas Mixtures supplied by Calgaz are suitable for Medical Administration Purposes.
14.0 General
14.1 Calgaz may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.2 The Purchaser may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Calgaz.
14.3 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.4 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.5 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.6 A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.7 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Calgaz.
14.8 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably
submit to the exclusive jurisdiction of the courts of England and Wales.