STICK-MIG-WELDING FABRICATION LTD
TERMS AND CONDITIONS
CHATHAM DOCKS, CHATHAM KENT, NORTH SIDE THREE, ME4 4SW
INTERPRETATION
Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.8.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Deliverables in accordance with these Conditions.
Customer: the person or firm who purchases the Deliverables from the Supplier.
Deliverables: means the Goods or Services or both as the case may be;
Force Majeure Event: has the meaning given in clause 11
Goods: the Goods (or any part of them) set out in the Order and includes related accessories, parts, spare parts and documentation.
Order: The Customer’s order for the Deliverables, as recorded and accepted (either verbally or in writing) by the Supplier following a written (including email and faxes) or verbal order from the Customer as the case may be.
Specification: any specification for the Deliverables, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: STICK-MIG-WELDING FABRICATION LTD a limited company incorporated in England & Wales reg no. 8287115
1.1 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and emails.
- BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Deliverables in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer or otherwise are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations are produced for the sole purpose of giving an approximate idea of the Deliverables described. They shall not form part of the Contract or have any contractual force. STICK MIG WELDING FABRICATION LTD
2.6 A quotation for the Deliverables given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.7 The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.
- GOODS & DELIVERABLES
The Supplier reserves the right to amend the specification of the Deliverables if required by any applicable statutory or regulatory requirements.
- DELIVERY/COLLECTION
4.1 The Supplier and the Customer shall agree in writing as to whether the Deliverables are to be delivered by the Supplier or collected by the Customer. The costs for delivery shall be additional to the costs of the Deliverables unless otherwise agreed (in writing) by the Supplier.
4.2 If the Supplier agrees to deliver the Deliverables the Supplier shall deliver the Deliverables to the location set out in the Order or such other location as the parties may agree at any time after the Supplier notifies the Customer that the Deliverables are ready.
4.3 Delivery of the Deliverables shall be completed on the Deliverables arrival at the Delivery Location or on the completion of loading of the Deliverables at the Delivery Location (as applicable).
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Deliverables that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Deliverables.
4.5 If the Supplier fails to deliver the Deliverables, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Deliverables of similar description and quality in the cheapest market available, less the price of the Deliverables. The Supplier shall have no liability for any failure to deliver the Deliverables to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Deliverables.
4.6 If 14 Business Days after the day on which the Supplier notified the Customer that the Deliverables were ready for delivery, the Customer has not taken or accepted (as applicable) delivery of them the Supplier shall be entitled to serve a Notice of Intention to Sell Deliverables.
4.7 If 92 calendar days after the day on which the Supplier served Notice of Intention to Sell Deliverables, and the Customer has not taken or accepted (as applicable) delivery of them, the Supplier may resell or otherwise dispose of part or all the Deliverables and, after deducting reasonable storage, selling costs, disbursements, fees and expenditure, account to the Customer for any excess over the price of the Deliverables or charge the Customer for any shortfall below the price of the Deliverables.
4.8 The Supplier may deliver the Deliverables by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- QUALITY
5.1 The Supplier warrants that on delivery the Deliverables shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality and supplied with reasonable care and skill; and
(d) be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if: STICK MIG WELDING FABRICATION LTD
(a) the Customer gives notice in writing to the Supplier within 5 Business Days of delivery that some or all of the Deliverables do not comply with the warranty set out in clause 5; and
(b) the Supplier is given a reasonable opportunity of examining such Deliverables; and
(c) the Customer (if asked to do so by the Supplier) returns such Deliverables to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, correct, repair, remedy or re-perform the defective Deliverables, or refund the price of the defective Deliverables in full.
5.3 The provisions of these Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.
5.4 The Supplier shall not be liable for Deliverables’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Deliverables after giving notice in accordance with clause 5.2(a);
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Deliverables or (if there are none) good trade practice regarding the same;
(c) the defect arises because of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Deliverables differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Except as provided in this clause 5:
(a) the Supplier shall have no liability to the Customer in respect of the Deliverables’ failure to comply with the warranty set out in clause 5.1
(b) the Supplier gives no warranty and makes no representations in relation to the Deliverables; and
5.6 All warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
5.7 These Conditions shall apply to any repaired or replacement Deliverables supplied by the Supplier.
- TITLE AND RISK
6.1 The risk in the Deliverables shall pass to the Customer on completion of delivery.
6.2 Title to the Deliverables shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Deliverables and any other Goods and/or Services that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Deliverables shall pass at the time of payment of all such sums.
6.3 Until title to the Deliverables has passed to the Customer, the Customer shall:
(a) store the Deliverables separately from all other Deliverables held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverables;
(c) maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
(e) give the Supplier such information relating to the Deliverables as the Supplier may require from time to time. STICK MIG WELDING FABRICATION LTD
6.4 The Supplier reserves a general right (“a possessory lien”) to detain and hold onto the Deliverables or any other Customer’s, property pending payment by the Customer of any sums due to the Supplier.
6.5 If before title to the Deliverables passes to the Customer the Customer becomes subject to any of the events listed in clause 8.3, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell the Deliverables or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Deliverables in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Deliverables are stored in order to recover them.
- PRICE AND PAYMENT
7.1 The price of the Deliverables shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 Deposit of 30% is payable upon ordering, if price quoted exceeds £30.000 (VAT exclusive)
7.3 The Supplier may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Deliverables to reflect any increase in the cost of the Deliverables that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Deliverables ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.4 The price of the Deliverables is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Deliverables.
7.5 The Supplier may invoice the Customer for the Deliverables at any time before or after the completion of delivery.
7.6 Unless credit terms have been agreed in writing the Customer shall pay the invoice in full and in cleared funds within 14 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall:
(a) pay interest on the overdue amount at the rate of 8% per annum above Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
(b) pay compensation arising out of late payment, pursuant to Late Payment of Commercial Debts (Interest) Act 1998; and
(c) pay all fees, charges, disbursements, and costs, howsoever caused, connected with or caused by late or non-payment. This includes, but is not limited to, debt collection costs and fees.
7.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.9 In the event that the Supplier engages a third party for the purposes of recovering any sums owing to it pursuant to these terms and the Contract the Customer hereby confirms and agrees that it shall indemnify the Supplier on a full indemnity basis against all costs, expenses, fees, disbursements and other outgoings in respect of such recovery proceedings.
- TERMINATION AND SUSPENSION
8.1 The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
(a) the Customer commits a material breach of the Contract and such breach is not remediable;
(b) the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
(c) the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after the Supplier has given notification that the payment is overdue; or
8.2 If the Customer becomes subject to any of the events listed in clause 8.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
8.3 For the purposes of clause 8.2, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer];
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(e) (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within [7] days;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.3(f) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.4 Without limiting its other rights or remedies, the Supplier may suspend provision of the Deliverables under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause
8.3(a) to clause
8.2(l), or if the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment or for any other reason that the Supplier (in its absolute discretion) considers to relevant to the trading arrangement between the Customer and the Supplier.
8.5 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
8.6 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
8.7 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
8.8 The paragraphs 4.6, 4.7, 6.2, 6.3, 6.4 shall survive termination of the contract.
- LIMITATION OF LIABILITY
9.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 9.
9.2 Subject to clauses 9.4 and 9.5, the Supplier’s total liability shall not exceed 100% of sums due under the Contract
9.3 Subject to clauses 9.4 and 9.5, the Supplier shall not be liable for consequential, indirect or special losses.
9.4 Subject to clause 9.5, the Supplier shall not be liable for any of the following (whether direct or indirect):
(a) loss of profit;
(b) loss of data;
(c) loss of use;
(d) loss of production;
(e) loss of contract;
(f) loss of opportunity;
(g) loss of savings, discount or rebate (whether actual or anticipated);
(h) harm to reputation or loss of goodwill.
9.5 The limitations of liability set out in clauses 9.2 to 9.4 shall not apply in respect of any indemnities given by either party under the Contract.
9.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) any other losses which cannot be excluded or limited by applicable law;
- NON-POUCHING
10.1 For the period of 24 months following commencement of the most recent contract, the Client promises and undertakes that he shall not canvass, solicit, employ, engage or otherwise use services of any employee, worker, contractor or subcontractor who was (or is) employed, provided services or was (or is) otherwise engaged by the Supplier in any capacity whatsoever.
- FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other 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. STICK MIG WELDING FABRICATION LTD
- GENERAL
12.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Equitable relief
(a) The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages
12.3 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.3(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.4 Severance.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.5 Waiver.
(a) A waiver of any right or remedy under the Contract or law 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 the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.6 References.
(a) The Customer shall provide upon request details of referees acceptable to the Supplier for the purposes of the Supplier checking the Customers credit worthiness. The Customer confirms and irrevocably consents to the Supplier contacting such referees and carrying out credit searches against it from time to time.
12.7 Third party rights.
(a) A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.8 Variation.
(a) Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
12.9 Governing law. STICK MIG WELDING FABRICATION LTD
(a) The 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 the law of England and Wales.
12.10 Jurisdiction.
(a) Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Agnieszka Szynkowska
……………………………………………………………….
Signed for and on behalf of Stick Mig Welding LTD
Date:
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Signed for and on behalf of the Customer and for and on behalf of themselves for the purposes of clause 10
Date: