FFIC Limited Conditions of Sale

FUJIFILM IMAGING COLORANTS LIMITED

CONDITIONS OF SALE

1. CONDITIONS

These are the conditions governing the sale of goods (“Goods”) sold by FUJIFILM Imaging Colorants Limited (“Seller”). These conditions apply to the exclusion of any other terms that any buyer (“Buyer”) seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No modification of these conditions shall be of any effect unless expressly accepted by Seller in writing and no such modification shall be effected by the acknowledgement of receipt of Buyer’s order or other document(s) containing terms or conditions inconsistent herewith.

2. QUOTATIONS AND ORDERS

Seller shall issue a quotation, either in the form of a letter, pro-forma invoice, or otherwise, to enable Buyer to place an order for Goods. Any order placed by Buyer constitutes an offer by Buyer to purchase Goods in accordance with these conditions. Seller shall have no obligation to accept Buyer’s order. Such order shall only be deemed to be accepted when Seller issues a written acceptance of the order, at which point a contract for sale to Buyer of the Goods ordered shall come into existence (“Contract”). A Contract constitutes the entire agreement between the parties. Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Seller which is not set out in a Contract.

3. PRICE AND PAYMENT

3.1 The price of Goods shall be as stated in the quotation issued by Seller to Buyer and unless otherwise stated is exclusive of VAT and the costs and charges of packaging, insurance and transport of Goods, which shall all be paid by Buyer on receipt of a valid VAT invoice.

3.2 For Goods to be delivered in the United Kingdom, payment shall be made by net cash due within 30 days of the date of the invoice or before delivery, if required. For Goods to be delivered outside the United Kingdom, payment shall be made as stated in the quotation issued by Seller to Buyer. Payment in either case shall be deemed not to have been made until the full price stated in the quotation shall have been received by Seller. All sums shall be paid in full by Buyer without set-off or deduction except as required by law.

3.3 If Buyer fails to make any payment due to Seller under any Contract by the due date for payment (due date), then Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC's base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. Buyer shall pay the interest together with the overdue amount.

4. DELIVERY

4.1 Delivery shall be made in accordance with the directions as to delivery stated in Buyer’s order. In respect of Goods to be delivered outside the United Kingdom:

(a) terms used in a Contract, unless otherwise stated, shall be defined in accordance with INCOTERMS 2010; and

(b) Buyer shall be responsible for ensuring due compliance with all local legal requirements in respect of the import, sale, distribution, storage, insurance or use of Goods and for paying any government duty or tax applicable.

4.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Seller shall not be liable for any delay in delivery of Goods that is caused by Buyer’s failure to provide Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.3 In cases of non-delivery of, damage to or shortage in any consignment, Buyer shall advise both carrier and Seller in writing (other than by a qualified signature on the carrier’s consignment note or delivery document) at the earliest opportunity and, in the case of damage or shortage, in any event not more than 10 days after delivery. In the absence of prompt written advice from Buyer to both carrier and Seller, the Goods shall be deemed to have been delivered and accepted by Buyer complete and in a satisfactory condition.

5. PASSING OF RISK

Risk to Goods delivered in the United Kingdom shall pass to Buyer on delivery. Risk to Goods delivered outside the United Kingdom shall pass to Buyer under INCOTERMS 2010.

6. PASSING OF TITLE

6.1 Title to Goods shall not pass to Buyer until Seller has received payment in full (in cash or cleared funds) for (i) the Goods; and (ii) any other goods or services that Seller has supplied to Buyer in respect of which payment has become due. Until title to Goods has passed to Buyer, the Buyer shall:

(a) hold the Goods on a fiduciary basis as Seller’s bailee;

(b) store the Goods, until they are used, separately from materials which are not Seller’s property and in a manner which makes them readily identifiable as Seller’s property;

(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(e) notify Seller immediately if it becomes subject to any of the events listed in paragraphs (c) or (d) of condition 10.1; and

(f) give Seller such information about the Goods as Seller may require from time to time,

but Buyer may resell or use the Goods in the ordinary course of its business.

6.2 If before title to Goods passes to Buyer, Buyer becomes subject to any of the events listed in paragraphs (c) or (d) of condition 10.1, or Seller reasonably believes that any such event is about to happen and notifies Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Seller may have, Seller may at any time require Buyer to deliver up the Goods and, if Buyer fails to do so promptly, enter any premises of Buyer or of any third party where the Goods are stored in order to recover them.

7. HEALTH AND SAFETY

Seller gives notice to Buyer that Seller has available information and product literature concerning the conditions necessary to ensure that Goods will be safe and without risk to health when properly used. If Buyer is not already in possession of such literature or requires any information or advice in connection with the safe use of Goods, Buyer should immediately contact Seller.

8. QUALITY

8.1 Seller warrants that Goods shall:

(a) conform in all material respects with the certificate of analysis supplied by Seller or, failing such certificate with Seller’s specification or, failing such specification with Seller’s typical analysis or, failing such specification or typical analysis, be of satisfactory quality; and

(b) be free from material defects in design, material and workmanship.

8.2 Any recommendation relating to the use of Goods made by Seller, whether in technical literature, in response to a specific enquiry or otherwise, is given in good faith but it is for Buyer to satisfy itself of the suitability of Goods for its own particular purpose. 

8.3 Subject to condition 8.4 if:

(a) Buyer shall notify Seller in writing of any defect in the Goods within a reasonable time of discovery and, in any event, within 60 days of delivery that some or all of the Goods do not comply with the warranty set out in condition 8.1;

(b) Seller is given a reasonable opportunity of examining such Goods; and

(c) Buyer (if asked to do so by Seller) returns such Goods to Seller's place of business at the Buyer’s cost,

Seller shall, if it is established that such Goods are defective, at Seller’s option, re-work or replace the defective Goods, or refund the price of the defective Goods in full. In such circumstances Buyer shall also be reimbursed the cost of returning the Goods to the Seller.

8.4 Seller shall not be liable for Goods' failure to comply with the warranty set out in condition 8.1 in any of the following events:

(a) Buyer makes any further use of such Goods after giving notice in accordance with condition 8.3 until Seller has investigated the complaint and the matter has been resolved;

(b) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage and use of such Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of Seller following any drawing, design or specification supplied by Buyer;

(d) Buyer alters such Goods without the written consent of Seller; or

(e) the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions.

8.5 No complaint arising in respect of any lot or batch of Goods shall entitle Buyer to reject or refuse delivery of all or any following deliveries of Goods ordered by Buyer.

8.6 Except as provided in this condition 8, Seller shall have no liability to Buyer in respect of Goods' failure to comply with the warranty set out in condition 8.1.

8.7 Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from any Contract.

8.8 These conditions shall apply to any reworked or replacement Goods supplied by Seller.

9. LIABILITY

9.1 Nothing in these conditions shall limit or exclude Seller's liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

(c) breach of the implied terms of good title, quiet possession and that the Goods are free from encumbrances; or

(d) death, personal injury or loss of or damage to property of consumers caused by defective products.

9.2 Subject to condition 9.1:

(a) Seller shall not be liable to Buyer, 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 a Contract ;and

(b) Seller's total liability to Buyer in respect of all other losses arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price of the Goods the subject of such Contract.

10. ADVANCE PAYMENT, SUSPENSION AND TERMINATION

10.1 Seller may (without prejudice to its other rights) require payment in advance of delivery, suspend delivery or terminate a Contract forthwith by written notice to Buyer:

(a) if Seller shall not on the due date have received the full price of the Goods supplied and any other sums due from Buyer (whether due in connection with the supply of Goods or otherwise), or

(b) if Buyer commits a breach of any other obligation under a Contract, or

(c) if Buyer is unable to pay its debts when they become due or enters into any arrangement with its creditors or ceases to pay its debts, or

(d) if in respect of Buyer an administration order is made, a receiver or manager is appointed, a winding up resolution is passed or a winding up or bankruptcy order is made or equivalent events or acts occur or are done in relation to or by Buyer.

10.2 Termination of a Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive termination of a Contract shall continue in full force and effect

11. FORCE MAJEURE

11.1 Seller shall have the right to cancel or delay or to reduce the amount delivered if:

(a) Seller is prevented from or hindered or delayed in manufacturing or acquiring Goods or delivering them by normal route or means of delivery through any event beyond Seller's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including 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;

(b) any government measure is taken or threatened which may prevent, hinder or delay the receipt by Seller of the full price of any Goods or which may result in Seller bearing any expense or loss which Seller would not otherwise have borne.

11.2 Following any such cancellation or reduction and during any such period of delay, Seller shall be under no liability arising out of Seller’s failure to deliver. 

12. WAIVER

A waiver of any right or remedy under a 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 a 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. 

13. SEVERANCE

If any court or competent authority finds that any provision of a 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 such Contract shall not be affected. If any invalid, unenforceable or illegal provision of a 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. ASSIGNMENT

Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract. Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract without the prior written consent of Seller.

15. LAW AND JURISDICTION

Any Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual 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