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1.1 These general terms and conditions of sale (“Conditions”) are applicable to every offer, purchase order, order confirmation, invoice or agreement for the sale of products (“Products”) by Anotech International UK Ltd or one of its affiliated companies (“Anotech International UK”) to its customer (“Customer”). In the event of any conflict between the Conditions and any more specific conditions agreed in writing between the parties, the provisions of the latter shall prevail.
1.2 The placing of an order by the Customer shall be considered as an irrevocable acceptance of the Conditions by the Customer to the exclusion of any other terms which are implied by trade, custom, practice or course of dealing. Acceptance of the Conditions implies that the Customer renounces in full the application of its own terms and conditions (of purchase). Variations from the Conditions shall only be binding upon Anotech International UK Ltd, if expressly agreed to in writing by an authorized representative of Anotech International UK. The signing by Anotech International UK of a Customer's order form or other documents issued by the Customer, or the acceptance of a Customer's order, does not imply the acceptance of that Customer’s general terms and conditions of purchase.
2.1. The offers made by Anotech International UK of the Products, are indicative only, are non-binding and shall not form part of the contract. The placing of an order by the Customer constitutes a binding offer by the Customer to purchase the Products detailed therein. All orders must be addressed to Anotech International UK by e-mail or fax. Anotech International UK reserves the right to accept or to refuse orders, wholly or partially. Anotech International UK shall be deemed to have accepted the Customer's order only upon the written confirmation of the Customer's order by an authorized representative of Anotech International UK or if earlier by the Delivery of the Products ordered by the Customer, at which point the contract shall come into existence.
2.2. Any cancellation of an order by the Customer must be done in writing and is only valid if accepted in writing by Anotech International UK. In case of cancellation of an order by the Customer, the Customer shall pay a fixed compensation to Anotech International UK amounting to ten per cent (10%) of the invoice value of the order, without prejudice to the right of Anotech International UK to claim higher damages in case the incurred damages exceed the aforesaid amount and/or to seek other legal remedies.
3.1. Anotech International UK shall deliver the Products Free On Board Yantian (as such term is defined in Incoterms 2010) (“FOB Yantian”). Delivery of the Products (“Delivery”) will be deemed to occur when Anotech International UK complete its delivery obligations under that Incoterm. To the extent only of any conflict or inconsistency between FOB Yantian and these Conditions, Incoterms 2010 will take precedence.
3.2. Anotech International UK’s delivery dates are indicative and non-binding. Failure to respect the delivery dates shall not entitle the Customer to terminate any agreement arising out of or in connection with the Conditions or to any right of compensation.
3.3. The Customer shall accept partial deliveries of the ordered Products. The Customer shall take possession of the ordered Products at the time of delivery. Should the Customer not take possession of the Products at the time of delivery, Anotech International UK is entitled to store the Products at the sole expense and risk of the Customer. Such protective measure do not suspend the payment obligation of the Customer.
4.1. The Products remain the property of Anotech International UK until payment of the purchase price (including late payment interests, costs and indemnities payable by the Customer) or any other amount owed by the Customer is received by Anotech International UK in full and cleared funds. Until payment of the purchase price and any other amount owed by the Customer to Anotech International UK, the Customer shall at its own cost: (a) attach a sign to the delivered Products that clearly and legibly indicates that the delivered Products are the property of Anotech International UK; and (b) store them separately from other products.
4.2. Until payment of the purchase price and any other amount owed by the Customer to Anotech International UK, the Customer agrees that Anotech International UK, or a third party appointed to this end by Anotech International UK, may enter into its premises or those of a third party where the Products are located, to retrieve the Products, irrespective of whether or not the payment period of these Products has already expired. In case the Products are located at the premises of a third party, the Customer shall assist Anotech International UK, or the third party appointed to this end by Anotech International UK, to retrieve the Products. Anotech International UK is entitled to retain property of the Products that have already been paid for in full or partially as security for the Products that remain unpaid.
4.3. The Customer’s rights to possession, use and resale of the Products will terminate immediately if, before ownership of the Products passes to the Customer in accordance with Article 4.1 or 4.2, where: the Customer has a receiver, administrator or provisional liquidator appointed; the Customer is subject to a notice of intention to appoint an administrator; any person takes any step or action to appoint an administrator in respect of the Customer; the Customer passes a resolution to appoint an administrator in respect of itself or for its winding-up (save, in the case of a resolution for winding up, for the purpose of a solvent restructuring previously approved in writing by Anotech International UK); have a winding up order made by a court in respect of the Customer; the Customer or any other person proposes or the Customer enters into any composition or arrangement with creditors (other than relating to a solvent restructuring previously approved in writing by Anotech International UK); or cease to carry on business; or have any steps or actions taken in connection with any of these procedures; or are the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction or are the subject of any proceeding in any Member State of the European Union which is capable of recognition under the EC Regulation on Insolvency Proceedings (EC 1346/2000) or the EU Regulation on Insolvency Proceedings (Recast) (EU 2015/848) or are the subject of an application for the recognition of a foreign insolvency proceeding under the Cross-Border Insolvency Regulations 2006 (SI 2006/1030.
4.4. The risk associated with the Products (and all packages and pallets supplied therewith) shall pass to the Customer in accordance with FOB Yantian. Until payment of the purchase price or any other amount owed by the Customer to Anotech International UK, the Customer shall ensure it has in place sufficient insurance for the risk of loss or damage to such Products and shall ensure that Anotech International UK is named on the insurance policy as the loss payee. The Customer shall provide details of such insurance policy and the payment of the insurance fees to Anotech International UK upon request.
5.1. Anotech International UK’s prices are FOB Yantian, VAT excluded and excluding any other applicable taxes or duties.
5.2. The purchase orders are invoiced at the prices and on the terms and conditions as stated in the order confirmation.
5.3. Anotech International UK’s invoices are payable by the Customer within thirty (30) days following the invoice date, in the currency specified and to the bank account specified on Anotech International UK’s invoice. Each invoice is considered as accepted in the absence of protest by registered letter within ten (10) days after its receipt. Protest of the invoice does not suspend the payment obligation of the Customer.
5.4. Any amount which remains unpaid after the due date shall automatically and without prior notice produce interest at the legal interest rate within the meaning of Article 5 of the Belgian Act of 2 August 2002 on combating late payment in commercial transactions (as amended from time to time). Any discount granted for timely payment of the invoice shall be withdrawn and a compensation of fifteen per cent (15%) of the invoice value shall be due by the Customer, without prejudice to Anotech International UK’s right to claim higher damages in case the incurred damages exceed the aforesaid amount and/or to seek other legal remedies. Any bank charges related to the cashing of checks, payments by wire transfer or other similar charges shall be borne by the Customer. All extrajudicial and legal costs incurred by Anotech International UK in the process of compelling the Customer to fulfil its obligations are payable by the Customer.
5.5. In case of entire or partial non-payment of an invoice on the due date, all outstanding debts or invoices on the part of the Customer shall become automatically and immediately payable. In such event, without prejudice to Article 4, Anotech International UK reserves the right to cancel or suspend any delivery to the Customer under any order, without the need of prior notice or of paying any compensation to the Customer. Set-off on the part of the Customer is explicitly excluded.
5.6. In case Anotech International UK is of the opinion that the Customer's creditworthiness is insufficient, Anotech International UK reserves the right to cancel or suspend any delivery to the Customer under any order and/or to request payment guarantees from the Customer.
6.1. The Customer shall inspect and examine the Products immediately upon receipt of the Products and verify whether their quality and quantity correspond to what has been agreed between parties. The Products shall be deemed to have been duly delivered by Anotech International UK, unless a claim for non-conformity in quantity or for visible defects is notified in writing to Anotech International UK within seven (7) days following the delivery date. Claims for hidden defects can be made within a period of six (6) months after delivery to the Customer and within fifteen (15) days following the discovery of the defect by the Customer. Any such notice must be in writing and must include reasonably detailed information on the Products and the defects in respect of which the Customer raises the claim.
6.2. Claims with respect to defects are only admissible and will be investigated only if the defect does not arise from the Customer’s failure to comply with Anotech International UK’s oral or written instructions as to storage or maintenance of the Products or good trade practices. Complaints do not suspend the payment obligation of the Customer.
6.3. The warranty provided by Anotech International UK for visible or hidden defects covers the replacement of the Products or their refund, at Anotech International UK’s discretion, with the express exclusion of any other warranty. No Products may be returned or destroyed without Anotech International UK’s prior written consent.
6.4. With respect to Products that are not manufactured by Anotech International UK, the duration and the scope of the guarantee provided by Anotech International UK is always limited to any guarantee that Anotech International UK receives from its manufacturer or its supplier (back-to-back).
6.5. Anotech International UK may oblige the Customer to recall Products sold by the Customer, within a reasonable period to be determined by Anotech International UK, if it appears that the Products sold by the Customer could be defective or cause loss or damage. The costs for such recall shall be shared equally by the Customer and Anotech International UK.
7.1. Anotech International UK shall be legally released of, and not obliged to comply, wholly or partially, with any obligation vis-à-vis the Customer in case of an event of force majeure, which shall include (but not be limited to) fire, explosion, typhoon, flood, war, riot, stoppages of work, industrial action, any form of governmental intervention, breakdown of plant or machinery (including transportation), shortages or unavailability from Anotech International UK’s usual sources of Products or of supplies for the manufacture or supply of the Products, or any other circumstances beyond the reasonable control of Anotech International UK. During an event of force majeure, the obligations on the part of Anotech International UK are suspended for a period equal to the period during which the event of force majeure exists. If the event of force majeure continues for a period of more than two (2) months, either party may terminate the order confirmation affected by the event of force majeure with immediate effect by notifying the other party in writing thereof, without any compensation being due.
8.1. Without prejudice to Article 6.3, Anotech International UK’s liability shall be limited to direct damages caused by its fraud, deception or intentional failure. Anotech International UK’s aggregate liability under any agreement arising out of or in connection with the Conditions shall in no event exceed the total amounts paid to Anotech International UK by the Customer during the term of such agreement. Anotech International UK’s liability for any single event shall not exceed the amount paid to Anotech International UK by the customer pursuant to the order to which the liability pertains. Any liability of Anotech International UK for indirect or consequential damages (including, but not limited to, loss of profit or investment or damage to third parties) is expressly excluded.
8.2. Nothing in these Conditions will operate to exclude or restrict one party’s liability (if any) to the other:
8.2.1. for death or personal injury resulting from its negligence or the negligence of a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977);
8.2.2. for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable; and
8.2.3. for breach of its obligations arising under section 12 Sale of Goods Act 1979.
All information exchanged between Anotech International UK and the Customer must be treated confidentially and may not be disclosed to third parties, unless with the prior written consent of the other party or in case of a legal obligation thereto. The confidentiality obligation shall remain in force after the exchange of such information for a period of five (5) years.
Anotech International UK has the right to terminate any agreement arising out of or in connection with the Conditions at any time, with immediate effect, without prior notice and without the Customer having any entitlement to compensation (i) in case the Products are seized by a third party; (ii) if the Customer breaches of one or more of the obligations arising from any agreement arising out of or in connection with the Conditions and fails to remedy or end the breach within seven (7) calendar days following a written notice by Anotech International UK; (iii) if the Customer enters into any composition or similar arrangement (formal or informal) with its creditors or is unable to pay its debts, is subject to a procedure of judicial reorganisation or bankruptcy, has a receiver or administrator appointed in respect of its undertaking, assets or income or any part thereof, has passed a resolution for its liquidation, or a request is filed or an order is made by any court for its liquidation or for its administration; or (iv) if the Customer ceases to trade. In case of termination, Anotech International UK likewise reserves the right to claim compensation for all costs, interests and damages incurred by Anotech International UK and/or to seek other legal remedies.
11.1. No failure or delay by Anotech International UK in exercising any right, power or privilege under the Conditions shall operate as a waiver thereof, nor shall it affect Anotech International UK ’s rights, powers and privileges in respect of any subsequent breach, non-performance or non-observance by the Customer.
11.2. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision will be deemed to be severed from the Conditions and this will not affect the remainder of these Conditions which will continue in full force and effect.
All agreements arising out of or in connection with the Conditions shall be governed by the laws of Belgium. All disputes resulting from any agreement arising out of or in connection with the Conditions shall be subject to the exclusive jurisdiction of the competent courts of Ghent, Belgium.