No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s
a. The Seller will use all reasonable efforts to ensure that the Products conform to the Seller’s published specifications current at the time of dispatch of the Products or the specifications specifically agreed in writing with the Buyer (including changes notified to the Buyer under the provisions of this clause). Since, however, the Products are based on naturally occurring minerals, the Seller reserves the right to change such specifications from time to time and, in that event, will notify the Buyer prior to dispatch of any such changes. Except where specifically otherwise agreed, the orders are executed according to the custom and practice generally accepted within the industry.
b. The Seller’s Products are offered on the basis that the Buyer has taken all reasonable measures to confirm their suitability for the Buyer’s own particular products, applications and production methods. Recommendations for use of the Products, whether given in writing, orally, or to be implied from results of tests carried out by the Seller, are based on current knowledge at the time. No guarantee, either express or implied, is made by the Seller regarding the validity of the recommendations or the results obtained therefrom.
3. Defective Products
The Products shall at the point of delivery correspond with their respective specifications. If any of the Products shall be found to be defective, such defects shall be notified by the Buyer in writing to the Seller:
a. for defects apparent on reasonable inspection, within 14 days of delivery.
b. for latent defects or defects not apparent upon reasonable inspection, within 14 days of when those defects could reasonably have been first identified. If the Products are recognised to be defective by the Seller, the Seller shall, at its option, either replace the defective part of the Products free of charge or credit the Buyer with a corresponding proportion of the original invoice price.
In respect of any defects, whether or not apparent upon inspection or latent, the Seller’s liability shall be strictly limited to the replacement or credit referred to in Clause 3 above. Without prejudice to the above, the Seller shall be under no liability in respect of alleged defective Products unless:
a. The Buyer gives to the Seller written notice and details of the defect within the periods mentioned in Clause 3.
b. The Buyer gives the Seller’s representative adequate opportunity to inspect the Products and remove samples for analysis.
c. The Buyer has stored and used the Products properly and has forthwith ceased processing.
In any event the Seller shall not be liable in respect of any loss or damage which arises:
a. In respect of the Buyer’s liability to any third party, including but not limited to the Buyer’s employees or customers.
b. In respect of other direct or indirect consequential loss or damage (including any loss or damage in respect of any loss of profits or income or business whether suffered by the Buyer or by any third party).
All other conditions warranties or other terms (except the Seller’s implied undertaking as to title and except in respect of death or personal injury caused by the Seller’s negligence), whether express or implied, statutory or otherwise, are hereby excluded. The use of the Products, including designing, testing and specifying a compound or product incorporating any of the Products, is the sole responsibility of the Buyer who shall assume any consequences thereof, whether direct or indirect, and whatsoever its nature, and the Seller makes no warranties in respect thereof. The Buyer shall assess Products across the specification range and take reasonable precautions to prevent any contamination of Products caused through no fault of the Seller during carriage or otherwise from entering the Buyer’s production process. The Buyer acknowledges that it is relying on its own expertise and knowledge and not that of the Seller in entering the Contract. The Buyer shall make sure that Products comply with all laws and regulations applying to the Buyer from time to time.
The Seller’s prices to the Buyer are determined on the basis of the exclusions and limitations of liability contained in these Conditions. The Buyer expressly agrees that these exclusions and limitations are reasonable because of the likelihood (amongst other matters) that otherwise the amount of damages awarded to the Buyer for a breach by the Seller of this Sale may be disproportionately greater than the price of the Products.
The time for delivery shall not be of the essence of the Contract. The Seller shall not be liable for any loss or damage howsoever arising from delay in delivery. Delivery of the Products shall take place:
a. Where the Seller undertakes delivery of the Products, when they are unloaded off the Seller’s or third party’s vehicle, ship or other transport at the premises, port, station or other address specified by the Buyer or, in the case of rail wagons or tankers parked at the Buyer’s premises, upon arrival at the Buyer’s premises.
b. Where the Buyer undertakes to collect the Products, when they are loaded on the Buyer’s or a third party’s vehicle, ship or other transport at the premises of the Seller or the address of any storage or warehouse facility used by the seller for the storage of Products. The Seller shall be under no obligation to effect the delivery of the Products if the Buyer is in any breach of any of its obligations towards the Seller whether arising out of these Conditions or otherwise. Risk shall transfer to the Buyer upon delivery. It is the sole responsibility of the Buyer to take out all insurance cover required against all risks that could be incurred or caused by the Products as from their delivery.
Carriers are responsible for Products lost or damaged in transit. In the ……