CONDITIONS OF BUSINESS
1. DEFINITIONS
1.1. In this Contract:
“Contract” means any contract between You and Us incorporating these conditions for the sale of Products;
“Guarantee” means the guarantee offered by Us to You in clause 12.1 of these conditions.
“Liability” means liability for any damages, claims, proceedings, actions, awards, expenses, costs (including legal costs) and any other losses and/or liabilities;
“Products” means any products and/or goods ordered from Us by You or to be supplied by Us to You;
“We, Us, Our” means Advanced Carbide Tooling Limited (registered in England Number 1788846);
“You, Your, Yourself” means the person whose order for Products We accept.
2. BASIS OF CONTRACT
2.1. These conditions shall govern the agreement between You and Us to the exclusion of any other terms or conditions. Orders placed by You leading to a contract which is not expressed to be subject to these conditions shall still be subject to them.
2.2. These conditions supersede all previous terms and conditions and shall replace any terms and conditions previously notified to You. Our employees, sub-contractors and/or agents are not authorised to make any representations or warranties concerning the Products unless confirmed by Us in writing.
3. ORDERS AND CONTRACT
3.1. Our quotations are not binding or capable of acceptance and are estimates only. You shall be responsible for the accuracy of an order and for giving Us any information necessary for Us to perform the Contract.
3.2. We may refuse to accept any orders placed for Products. The Contract between You and Us shall come into effect on Our acceptance of Your order.
4. DELIVERY
4.1. Dates for delivery are estimates only and are not guaranteed. Time is not of the essence in relation to such dates.
4.2. Where Products are to be delivered in instalments, each delivery shall constitute a separate and distinct contract and failure by Us to deliver, or any claim by You in respect of, any instalment shall not entitle You to repudiate and/or terminate this Contract as a whole.
4.3. You shall have no right to reject Products nor to rescind for late delivery unless the due date for delivery has passed and You have served on Us a written notice requiring the Contract to be performed and giving Us not less than 14 days in which to do so and the notice has not been complied with.
4.4. You shall procure during normal working hours that We have free rights of access to the address for delivery for the purpose of delivering the Products. If You refuse to take delivery of any Products then We may withhold delivery of any other Products and treat this Contract as repudiated by You.
4.5. If the parties agree that the Products are to be collected from Our premises then You shall collect the Products within 3 working days of being notified that the Products are ready for collection. If the Products are not collected by You within the specified period We may either despatch the Products to You at Your expense and risk, store the Products at Your expense and risk until despatch and/or collection, and/or make appropriate arrangements for the disposal of the Products.
5. PRICE AND PAYMENT
5.1. The price of the Products shall be as quoted to You or otherwise as shown in Our price list current at the date of the acceptance of the order.
5.2. Except as otherwise stated, prices are ex-works, Our premises, and You shall be liable to pay Our charges for transport and insurance. We may make an additional reasonable charge for packaging and packing cases. Our prices are exclusive of any applicable VAT, for which You shall additionally be liable.
5.3. Our terms of payment are net cash or cleared funds paid into Our bank account by the end of the calendar month following the calendar month in which the invoice is raised. Time for payment shall be of the essence.
5.4. We may require You to provide an initial payment (up to the full value of the order placed by You) before orders are accepted, and/or Products are manufactured and/or despatched.
5.5. Any monies received by Us from You may be applied by Us at Our option against any additional administrative costs and/or interest charged prior to application against any principal sums due from You in respect of any Products, against which it may be applied in any order.
5.6. We may invoice each delivery of Products separately.
5.7. You shall pay all sums due to Us under this Contract without any set-off, deduction, counterclaim or any other withholding of monies.
5.8. If payment in full in cash or cleared funds is not made to Us when due then We may:
5.8.1. withhold and/or suspend future or current deliveries of the Products under this and/or any other agreement with You; and/or
5.8.2. charge You Our additional administrative costs and/or interest (both before and after judgment) on the amount unpaid at the rate of 2% per calendar month. Such interest shall be compounded with quarterly rests.
6. CANCELLATION AND RETURNS
6.1. You may cancel delivery of the Products without charge at any time up to 7 days before the due date for delivery.
6.2. You may also cancel this Contract at any time up to 7 days after delivery, provided that You return the Products, at Your expense, unused and undamaged within a further 7 days, together with payment of Our reasonable charges to cover transport of the Products to You, insurance, administrative and restocking costs.
6.3. The provisions of this clause 8 do not apply to special orders of Products designed and/or manufactured to the Customer’s individual requirements.
7. SPECIFICATION AND INTELLECTUAL PROPERTY RIGHTS
7.1. Any specification supplied by Us to You shall only be approximate unless stated on Our quotation or agreed in writing.
7.2. You will check any quotation, specification and/or drawing supplied by Us to ensure that the information contained in it is accurate and adequate for the Products.
7.3. Details and/or specifications in brochures and price lists produced by Us are intended as a guide and give only a general approximation of the Products. We may correct any typographical, clerical or other error or omission contained in Our literature, quotation and/or order acceptance.
7.4. We may make changes to the specification of the Products as required from time to time by law, applicable safety or manufacturing requirements provided that they do not have a material adverse effect on the quality of the Products.
7.5. All intellectual property rights (including without limitation all patents, copyright, design rights (whether registered or unregistered), trade marks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same) in the Products shall be owned by Us absolutely.
8. PROPERTY AND RISK
8.1. Risk in the Products shall pass to You at the time of delivery. Delivery shall be deemed to occur either at the time when the Products arrive at the place of delivery (if We deliver the Products by Our own transport), or when the Products leave Our premises or after the expiration of 3 days after We have notified You that the Products are available for collection from Us in accordance with clause 4.5.
8.2. Risk in Products returned to Us by You in accordance with clause 6 shall not pass back to Us until the Products have been delivered to Our premises.
9. RETENTION OF TITLE
9.1. We shall retain title and ownership of the Products until We have received payment in full of all sums due for all Products supplied to You by Us under this Contract and any other agreement between Us and You.
9.2. Until payment in full of the price for all Products supplied, You shall-
9.2.1. store the Products separately from any products or goods belonging to You or any third party and shall clearly mark and identify the Products as being Our property; and
9.2.2. allow Our employees and/or agents to enter Your premises to check compliance with this clause.;
9.2.3. keep the Products insured for the price at which the Products were sold to You against all insurable risks;
9.2.4. keep the proceeds of sale of any Products and/or any monies relating to the Products received by You under any policy of insurance in a separate bank account and hold the proceeds on bare trust for Us.
10. DEFAULT
10.1. If You:-
10.1.1. fail to make any payment to Us when due;
10.1.2. breach the terms of this Contract and, where the breach is capable of remedy, have not remedied the breach within [14] days of receiving notice requiring the breach to be remedied;
10.1.3. persistently breach the terms of this Contract;
10.1.4. pledge or charge any Products which remain Our property, or cease or threaten to cease to carry on business, or propose to compound with Your creditors, apply for an interim order under Section 252 Insolvency
Act 1986 or have a Bankruptcy Petition presented against You, or being a company, enter into voluntary or compulsory liquidation, have a receiver, administrator or administrative receiver appointed over all or any of
Your assets, or take or suffer any similar action in any jurisdiction;
10.1.5. appear to Us due to Your credit rating to be financially inadequate to meet Your obligations under the Contract; and/or
10.1.6. appear reasonably to Us to be about to suffer any of the above events;
then We may, without prejudice to any other remedies, exercise any or all of the rights set out in clause 10.2 below.
10.2. If any of the events set out in clause 10.1 above occurs in relation to You then:-
10.2.1. We may enter, without prior notice, any of Your premises (or premises of third parties with their consent) where Products owned by Us may be and repossess and dispose of any Products found which We own so as to discharge any sums due to Us under this Contract or any other agreement with You;
10.2.2. We may require You not to re-sell or part with the possession of any Products owned by Us until You have paid in full all sums due to Us under this Contract or any other agreement with You;
10.2.3. We may withhold delivery of Products and stop any Products in transit;
10.2.4. We may cancel, terminate and/or suspend without liability to You any agreement with You; and/or
10.2.5. all monies owed by You to Us shall forthwith become due and payable.
11. GUARANTEE
11.1. All goods are carefully inspected and checked before delivery. We guarantee the Products to be free from defects in materials and/or workmanship at the date of delivery.
11.2. The Guarantee is given by Us subject to the following conditions:-
11.2.1. We shall be under no Liability in respect of any faults arising after risk in the Products has passed which is caused by any subsequent mechanical, chemical, electrolytic or other damage not due to a defect in the Products; and/or
11.2.2. We shall be under no Liability in respect of any faults or defects caused by wilful damage, abnormal working conditions, failure to follow Our instructions, lack of skill of the tool operator (including but not limited to any failure to adequately control and/or limit the speed of the machinery or tooling and/or any failure to properly set or calibrate the machinery or tooling in which the Products are used), misuse, improper maintenance, unsuitable use, negligence on Your part or on the part of a third party or alteration or repair of any Products without Our prior approval.
11.3. If any Product proves to be defective and is covered by the Guarantee then We shall at Our sole option either replace, issue a credit note for or refund the price for such a Product. Provided We comply with this clause, such compliance shall be Your only remedy in respect of claims under the Guarantee.
11.4. We agree that We will comply with this clause in respect of any defective Products covered by the Guarantee within a reasonable time of being notified by You of the defect.
11.5. Any work We undertake outside the Guarantee will be charged for.
11.6. We shall have no Liability to You under the Guarantee unless:
11.6.1. You inspect the Products and notify Us of any defect within 14 days of the date of delivery; and
11.6.2. You return it to Us for inspection if so reasonably requested by Us within 7 days of Your notification under clause 11.6.1 above. If the Product shall prove to be defective, We shall reimburse You for the cost of returning the defective Product.
11.6.3. The Guarantee will not apply if You have not paid in full for the relevant Products on the due date for payment.
11.6.4. All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
12. REPAIRS AND REPLACEMENT
12.1. We may at Our option replace or refund the price of defective Products which are notified to Us outside the specified time limit where in Our opinion the defect would not have been ascertainable on inspection and has been notified to Us as soon as reasonably practicable.
12.2. We will at Our option either issue a credit note for or refund the price of or replace free of charge any Products missing from a delivery of Products provided that the missing items are notified to Us within 7 days of delivery or in the event of total non-delivery You notify Us within 7 days of receipt of the invoice by You.
13. LIMITATIONS ON LIABILITY
13.1. We shall have no Liability for any defect in the Products caused or contributed to as a result of the Products being used either for display or demonstration purposes or being handled by Your customers or by You.
13.2. We shall have no Liability to You:
13.2.1. if the price for the Products has not been paid in full by the due date for payment;
13.3. for errors in any specification and/or labelling information supplied by You. You are solely responsible for their accuracy;
13.3.1. for defective Products, Products not despatched or Products damaged or lost in transit unless the event is notified to Us within the appropriate time limit set out in this Contract;
13.3.2. for damage, loss, liability, claims, costs or expenses caused or contributed to by Your continued use of defective Products after a defect has or should reasonably have become apparent or suspected to You;
13.3.3. if You fail to give Us a reasonable opportunity to remedy any matter for which We would otherwise be liable before You incur any costs and/or expenses in remedying the matter Yourself;
13.3.4. to the extent that You are covered by any policy of insurance and You shall ensure that Your insurers waive any and all rights of subrogation they may have against Us;
13.3.5. for any consequential losses;
13.3.6. loss of profits and/or damage to goodwill;
13.3.7. for any economic and/or other similar losses;
13.3.8. for any special damages and indirect losses; and/or
13.3.9. for any business interruption, loss of business, contracts and/or opportunity.
13.4. You shall be under a duty to mitigate any loss, damage, costs or expenses that You may suffer (including by maintaining an adequate stock of Products).
13.5. Our total Liability to You shall not exceed three times the value of the invoice relating to the claim. To the extent that any of Our Liability to You would be met by any insurance of Ours then Our Liability shall be extended to the extent that such Liability is met by such insurance.
13.6. Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of
(i) Liability for breach of contract;
(ii) Liability in tort (including negligence); and
(iii) Liability for breach of statutory duty and/or common law;
except clause 13.5 above which shall apply once only in respect of all the said types of Liability.
13.7. Nothing in this Contract shall exclude or limit Our Liability for death or personal injury due to Our negligence or any Liability which is due to fraud or any other Liability which it is not permitted to exclude or limit as a matter of law.
14. GENERAL
14.1. Either party may give notice to the other by facsimile or email (and such notice shall be deemed received at the start of the business day following receipt by that party of confirmation of transmission) provided that a confirming copy of it is sent by first class post to the other party within 24 hours of transmission.
14.2. You agree to indemnify and keep indemnified Us against any and all losses, lost profits, damages, claims, costs (including legal costs on a full indemnity basis), claims, actions and any other losses and/or liabilities arising from or due to any breach of contract, any tortious act and/or omission and/or any breach of statutory duty by You.
14.3. No waiver by Us of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.4. If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
14.5. We shall not be liable to You for any delay in performance of this Contract to the extent that such delay is due to any events outside Our reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If We are affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
14.6. All third party rights are excluded and no third party shall have any right to enforce this Contract. This shall not apply to members of the Company’s group who shall, subject to the Company’s consent, have the right to enforce this contract as if they were the Company. Any right of a third party to enforce this Contract may be varied and/or extinguished by agreement between the parties to this Contract without the consent of such third party.
This Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.
