
Product Supply Terms & Conditions
Noxdown Limited General Terms and Conditions of Sale
A. DELIVERY METHOD
A1. Delivery to Customer Premises (“Delivered-In”)
1. Buyer shall request in writing to Seller deliveries of Product in accordance with the Agreement. Such request must: (a) specify the quantities, grade and location; and (b) be made at least 3 days prior to the requested delivery date. Notwithstanding the foregoing, the precise delivery dates and times shall be at Seller’s option and Product shall be delivered on days, between hours and in loads of minimum and / or maximum quantities as may from time to time be prescribed reasonably by Seller. Buyer shall allow a reasonable period for Seller to deliver Product.
2. Buyer shall ensure that:
a. it provides, at each location at which delivery shall take place, suitable and safe storage installations and facilities (“Delivery Facilities”), which: (i) shall comply with all applicable legal and regulatory requirements; (ii) the delivery road wagon (“Delivery Vehicle”) can safely access, deliver Product and leave; and (iii) Product can be delivered without any risk of a Hazardous Situation;
b. for each delivery, there will be sufficient space available for Product at the Delivery Facilities for the safe and proper reception of the quantity of Product being delivered;
c. for each delivery, a competent person is present at all times throughout delivery operations who is authorised to accept deliveries involving Product (“Competent Person”);
d. such Competent Person will, during the whole time of the delivery operations: (i) be in close proximity to the Delivery Vehicle and the storage facilities; and (ii) so far as is practicable, keep a constant watch for the purpose of preventing any Hazardous Situation arising;
e. any special delivery instructions or hazards are clearly, correctly and concisely notified at the time when Buyer requests delivery and repeated at the time of delivery.
3. Buyer shall be liable for and shall indemnify, defend and hold harmless Seller in respect of: (a) any failure to comply with any provision of clause A1,2; (b) any loss, leakage, spillage, contamination of, or damage to, any Product occurring at the Delivery Facilities or any pollution or damage to person or property occurring at the Delivery Facilities (“Hazardous Situations”), other than as a result of breach by Seller; and (c) any losses, damages, liabilities, claims, costs and expenses suffered or incurred by Seller arising out of or in connection with any of the foregoing.
4. If an event occurs at the Delivery Facilities which causes or may cause a Hazardous Situation, Buyer shall immediately take such steps to seek to avoid, and/or rectify, such Hazardous Situation.
5. Without in any way limiting or prejudicing any other provision, right or remedy under this Agreement (including without limitation clauses A3 and A4): (a) Seller may refuse to deliver any Product or cease delivering any Product if, in its sole discretion, it considers that such a delivery will or might result in
adverse consequences of any kind whatsoever (including without limitation a Hazardous Situation); and (b) Seller or its agents or contractors may, at Buyer’s expense, take such action as they deem fit to avoid, and/or and rectify, any Hazardous Situation at the Delivery Facilities and Buyer hereby authorises any such action.
6. On completion of the delivery, the representative of Buyer shall confirm the delivery by signing a receipt provided by the Seller or its contractor at the time. Buyer warrants that any person signing the receipt is authorised to do so on behalf of Buyer and the signed receipt will be conclusive evidence of delivery by the Seller.
A2. Collection Ex-Works
1. Buyer shall request in writing to Seller availability for collection of Product in accordance with the Agreement. Such request must: (a) specify the volume and location for collection (“Collection Location”); and (b) be made at least 3 days prior to the requested collection date. Notwithstanding the foregoing, the precise Collection Location, dates and times shall be at Seller’s option and Product shall be collected on days, between hours and in loads of minimum and / or maximum quantities as may from time to time be prescribed reasonably by Seller. Buyer shall allow a reasonable period for Seller to make Product available.
2. Collection Ex-Works shall be deemed to be complete at the point at which Product is loaded onto the Delivery Vehicle, belonging to Seller or Seller’s contractors, that is being used to collect the product from the Collection Location
B. RISK & TITLE
1. Delivered-In
a. Risk of loss or damage to the Product shall pass to Buyer, and delivery shall be deemed to take place, when the Product has been discharged from the Delivery Vehicle, belonging to Buyer or Buyer’s contractors, at the Delivery Facilities.
2. Collection Ex-Works
a. In the case of Collection Ex-Works, the risk in the Product shall pass from the Seller to the Buyer at the point at which Product is loaded onto the Delivery Vehicle, belonging to Seller or Seller’s contractors, that is being used to collect the product from the Collection Location.
3. Title to Product shall not pass to Buyer until Seller has received payment in full of all sums due and owing by Buyer to Seller, including without limitation payment of the Price for all Product.
4. Subject to clause B5, until such time as title in Product passes to Buyer: (a) Buyer shall hold Product on trust as Seller’s fiduciary agent and bailee (or in Scotland as custodier); and (b) Buyer shall keep all Product properly and safely stored at the Delivery Facilities to which it was delivered, protected, fully insured under an appropriate policy for all risks from the moment of delivery, identified as Product supplied by Seller and segregated from Product belonging to any other person.
5. Notwithstanding and without prejudice to clauses B3 and B5, whilst any Product remains the property of Seller, Buyer may use the Product in the ordinary course of its business, provided that no Default Event has occurred or Buyer has not otherwise breached this Agreement.
6. Buyer’s right to possession of any Product shall cease immediately upon the occurrence of a Default Event or a breach of this Agreement by Buyer. Upon any such Default Event or breach, Seller shall have the right to: (a) take back possession of Product from Buyer by entering Buyer’s premises and securing or removing Product from Buyer’s premises; (b) sell any such Product as Seller deems fit, without need for any tender or auction, and apply the proceeds of sale in such manner as Seller deems fit in its sole discretion. Buyer shall be liable for and shall indemnify and hold harmless Seller in respect of any costs incurred by Seller in exercising these rights.
C. MEASUREMENT & QUANTITY
1. Seller or its agents or contractors shall determine the quantity of Product delivered.
2. The quantity of Product delivered may vary by up to 5% (either way) at Seller’s option from the quantity requested by Buyer. Quantity shall be determined by Seller or its agents or contractors.
3. If Delivered-In, Buyer shall be responsible for verifying that the Product has been fully discharged from the Delivery Vehicle.
4. The quality and quantity determinations made pursuant to this clause C shall be final and binding on Buyer and Seller as to the quality and quantity of the Product delivered, save for fraud or manifest error. The Price shall be payable based on the quantity loaded by the tanker and not necessarily the
quantity discharged.
D. HEALTH, SAFETY & ENVIRONMENT
1. Seller is committed to the promotion of health and safety and to proper regard for the environment in respect of all its activities. On request, Seller issues Technical Data and Safety Sheets for Product (“Data Sheets”). Buyer shall ensure that its employees, agents, contractors, buyers and other persons who may use the Product: (a) are provided with the Data Sheets; and (b) read and observe the instructions and recommendations in the Data Sheets. Buyer shall provide its employees with appropriate training and information to enable them to handle and use the Product without danger to health or safety. To the extent permissible by law, Seller shall have no liability for the accuracy of the Data Sheets or for any loss, damage or injury resulting from any failure to adhere to the Data Sheets or from Hazardous Situations in the nature of the Product delivered. Replacement Data Sheets may be obtained by writing to: Managing Director, Noxdown Limited, York Road, Pocklington, YO42 1NS, or sales@noxdown.co.uk
2. Buyer shall: (a) ensure that the Delivery Facilities and all equipment used with Product is installed, maintained and operated in such manner to avoid accidents which could have reasonably been anticipated; and (b) do everything necessary to prevent Product, used or unused, entering drainage, sewage systems, water courses or soil. Buyer shall co-operate, so far as reasonable, with Seller in implementing measures designed to improve health, safety and environmental performance.
E. LIABILITY & INDEMNITY
1. Buyer will indemnify, defend and hold harmless Seller, its directors and its employees against any claims, liability, loss, damage, costs or expenses arising out of or in connection with:
a. Buyer’s unloading, storage, handling, sale, use or disposal of any Product except to the extent caused by Seller’s negligence and / or
b. Buyer’s negligence, a Default Event or any failure by Buyer to comply with any term or condition of this Agreement
2. Neither party shall be liable to the other party under or in connection with this Agreement for the other party’s: (a) loss of actual or anticipated profit; (b) losses caused by business interruption; (c) loss of goodwill or reputation; or (d) any indirect, special or consequential cost, expense, loss or damage
even if such cost, expense, loss or damage was reasonably foreseeable or might reasonably have been contemplated by the parties and whether arising from breach of contract, tort, negligence, breach of statutory duty or otherwise.
3. Notwithstanding anything to the contrary in this Agreement, Seller’s total liability to Buyer in respect of losses, damages or claims (excluding any interest) arising out of or in connection with this Agreement in respect of an event or a series of related events, whether as a result of breach of contract,
breach of warranty, breach of statutory duty, negligence or other tort, shall not exceed the purchase price of the relevant delivery of Product (at the time of the delivery) or, if the above breach of contract consists of a failure to deliver, the price of the Product had it been delivered and invoiced.
4. Notwithstanding anything to the contrary in this Agreement, Seller will not be liable for any breach of the Agreement and any claim by Buyer shall be waived and absolutely barred: (a) unless Buyer notifies Seller in writing within 7 days of such breach; (b) unless Buyer gives Seller a reasonable time to investigate the supposed breach; (c) if, in respect of quality or quantity claims, Buyer continues to use the Product in question after the occurrence of the breach; and (d) if Buyer alters, modifies or adds to the Product in any way without Seller’s prior written consent.
5. Buyer agrees that Buyer is familiar with the Product along with: its uses, characteristics and qualities. Buyer is not relying on Seller’s skill or judgement to select Product for any particular purpose. Seller is only responsible for quality of Product while Seller retains title of product. Seller has no responsibility for the subsequent finished product derived from transformation or processing of Product. In any case, Seller shall not be liable for any indirect or consequential damages, for breach of warranty or otherwise and Buyer’s damages may not exceed the sums actually paid by Buyer to Seller for any Product with respect for any reason is claimed.
F. DEFAULTS & DAMAGES
1. A “Default Event” shall occur if Buyer: (a) fails to make any payment under the Agreement on the due date; (b) fails to comply with any of its other obligations under the Agreement; (c) becomes bankrupt or insolvent or is otherwise the subject of any bankruptcy, insolvency or similar proceedings, is unable to pay its debts as they fall due, is wound up or dissolved or an administrator, receiver, liquidator, trustee or other similar official is appointed; or (d) commits a Default Event or similar such event however defined or otherwise breaches any other agreement between Seller and Buyer.
2. Upon a Default Event, Seller may in its sole and absolute discretion do any one or more of the following, without prejudice to and in addition to any rights and remedies provided elsewhere in the Agreement or in law:
a. terminate any one or more deliveries under the Agreement, whether or not the Default Event relates to such delivery or deliveries, by giving written notice to the Buyer;
b. terminate the whole Agreement, including all further deliveries thereunder, by giving written notice to Buyer; and/or
c. suspend performance of any of its obligations under the Agreement until the Default Event is cured. If the time for performance expires during the suspension, Seller shall not be required to perform a suspended obligation later.
In the event of a Damages Event, Buyer shall be liable for, in addition to any monies otherwise payable under the Agreement, damages which shall comprise: (a) a sum equal to: (i) the relevant quantities of Product plus any tolerances; multiplied by (ii) the difference between the contract price and the price of any resale of the Product by Seller or the market price for the Product as at the date of the Damages Event, whichever is greater, (b) any other losses, costs, damages or expenses caused by the Damages Event. Any events after the Damages Event, which might otherwise reduce damages, shall not be taken into account when assessing the damages payable by Buyer to Seller.
G. MISCELLANEOUS
1. Neither Seller nor Buyer shall be responsible for any failure to fulfil any term or condition of this Agreement if fulfilment has been hindered or prevented by a “Force Majeure” event, meaning any circumstances not within the reasonable control of Seller or its agents or contractors or Buyer, including without limitation any act of God, natural calamity, floods, fires or explosions, acts of war or terrorism, strikes or other industrial action, orders or action by any governmental, military or police authority, epidemic or pandemic, or any event similar to the foregoing. For greater certainty, a lack of funds, the availability of a more attractive market or inefficiency in operations do not constitute events of “Force Majeure”. The party seeking to invoke this clause shall give written notice to the other party specifying the Force Majeure event and its likely duration.
2. Save to the extent expressly provided in this Agreement, Seller gives no representation, warranty, guarantee or condition, express or implied, in relation to any Product as to its quality, description, merchantability, suitability or fitness for any purpose (whether or not any intended purpose is known by Seller). The terms and conditions implied by sections 13, 14 and 15 of the Sale of Goods Act 1979, as may be amended or replaced, are excluded.
3. If Buyer fails to pay in full any amount on the due date, without prejudice to any other rights of Seller, Seller shall have the right to charge interest on any unpaid amount from the due date until Seller receives payment in full into Seller’s bank account. Interest shall be payable at a rate per annum equivalent to the Bank of England base rate prevailing at the due date plus 5% compounded daily.
4. Unless otherwise expressly indicated, the Price specified in the Agreement is exclusive of any VAT, which Seller shall be entitled to charge Buyer at the prevailing rates.
5. Product is not to be resold by Buyer in its current form, without prior notification to and permission of Seller
6. Buyer has all consents, licences, permits and authorisations necessary for it to perform all of its obligations under the Agreement.
7. Where the Buyer suffers a material decrease to its credit rating or Seller reasonably believes a material decrease is imminent, including due to an actual or planned reduction or withdrawal of credit insurance the Buyer has on the Seller, the Seller reserves the right to review the Buyer’s payment and/or credit terms with the Seller. Seller will inform Buyer of the outcome of such review by giving notice to the Buyer of any change in the Buyer’s payment and/or credit terms.
8. The invalidity, illegality or unenforceability of any provision of the Agreement shall not affect or impair the validity, legality or enforceability of any other provision of the Agreement in any way whatsoever.
9. All sensitive commercial arrangements (price, quantity etc.) are to remain private and confidential between Seller and Buyer.
10. The Agreement supersedes and cancels in all respects any previous representations, conditions, agreements and / or undertakings, whether given in writing or orally, concerning the subject matter of the Agreement.
11. Where NOXDOWN LIMITED provide IBC containers (hereafter ‘Containers’) for the transport of goods these Containers shall be charged at a rate of 10 pence per litre, unless specified otherwise or an undamaged IBC complete with intact seals has been returned to NOXDOWN LIMITED at the point of delivery. The Container shall be the property of the customer until it is returned in the above condition in exchange for a filled IBC which will be exchanged for this Container, and the new Container then becomes property of the customer while the returned container becomes property of the Seller.
a. All IBC containers carry a serial number denoted by the seal fixed to it. This number is unique and registered to your account and MUST NOT be removed. This seal along with the IBC must be made available for collection within 12 months of the delivery date. Failure to provide an empty NOXDOWN LIMITED container with its serial number seal intact within 12 months of delivery will result in no Two-tier Rebate being made available upon your next delivery.
12. This Agreement is governed by English Law and subject to the jurisdiction of the English Courts. Any claim by Buyer shall be deemed waived and absolutely barred unless Buyer commences proceedings within 1 year of the date on which the Product to which the claim relates was delivered or, if the claim concerns a failure to deliver, the date on which it should have been delivered.

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