MALTHOUSE ENGINEERING CO. LIMITED TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
The Customer’s attention is particularly drawn to the provisions of clause 14
1. Definitions and Interpretation
1.1 The following definitions apply in these Conditions:
Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.
Call off Contract means a Contract where the Customer has agreed to purchase and pay for the Goods on a call off basis; that is typically where the Supplier has agreed to supply, and the Customer has agreed to purchase the Goods at an agreed volume over an agreed period at an agreed price.
Claims Period: has the meaning given in clause 5.1.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 17.4.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who has agreed to purchase (or who has purchased as the context requires) the Goods and/or Services from the Supplier pursuant to the Contract.
Customer Goods: shall mean the Customer Materials after the Supplier has completed the provision of the Services in relation thereto.
Customer Materials: means any property or materials provided by the Customer to the Supplier (on a free issue basis) to enable the Supplier to perform the Services (such as cutting and/or processing) on or in relation to the same.
Delivery Location: has the meaning given in clause 4.1 or 4.2 as the case maybe.
Force Majeure Event: any events, circumstance or causes not within the Supplier’s reasonable control including without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; (h) non-performance by a supplier to, or subcontractor of, the Supplier; and (i) interruption or failure of utility service.
Goods: shall mean the goods (or any part of them as the context requires) to be supplied by the Supplier to the Customer being Customer Goods and/or Sale Goods as the applicable Contract requires.
Goods Specification: the specification for the Sales Goods (including details of any cutting, processing and/or other work to be performed by the Supplier prior to sale in relation to the Sales Goods) as agreed in writing by the Customer and the Supplier.
Inherent Risks: shall have the meaning given in clause 10.1.
Intellectual Property Rights: patents, rights to inventions, copyright, trademarks, rights in designs, database rights and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: The Customer’s order for the supply of Goods and/or Services.
Sale Goods: shall mean the goods to be sold (or as sold as the context requires) by the Supplier to the Customer under the applicable Contract but excluding for the avoidance of doubt Customer Goods.
Services: shall mean the services to be supplied (or as supplied as the context requires) by the Supplier to the Customer under the applicable Contract.
Service Specification: the specification for the Services (including details of any cutting, processing and/or other work to be performed by the Supplier) as agreed in writing by the Customer and the Supplier.
Specification: shall mean the Goods Specification and/or the Services Specification, or either one of them as the context requires.
Supplier: Malthouse Engineering Co. Limited registered in England and Wales with company number 01931254 and whose registered office is at 3 Hainge Road, Tividale, Warley, West Midlands, B69 2NL, England.
1.2 The following rules of interpretation apply in these Conditions.
1.2.1 A person includes a natural person, corporate or unincorporated body (whether having separate legal personality or not).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.2.4 Any words following the terms including, include for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point, and on which date the Contract shall come into existence. Notwithstanding the foregoing clause if the Supplier has not given a written acceptance of the Customer’s order but supplies Goods and/or Services pursuant to that Order then these conditions shall nonetheless apply to the Contract.
2.3 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 law, trade custom, practice, or course of dealing; in particular any conditions of purchase of the Customer are expressly excluded from the Contract. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents of the Customer that is inconsistent with these Conditions.
2.4 Any quotation given by the Supplier shall not constitute an offer, and all quotations are subject to the provisions of clause 11.3.
2.5 All these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.6 The Supplier reserves the right to correct any clerical or typographical errors made by its employees at any time.
3. Goods
3.1 To the extent that the Goods are to be processed or manufactured and/or the Services are to be provided in accordance with a design and/or specification supplied by the Customer or its representatives, then the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses suffered or incurred by the Supplier arising out of or in connection with (a) any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of such design and/or specification and (b) any liability arising under or by reason of the provisions of the Consumer Protection Act 1987 in relation to any specification or design of such goods. This clause 3.1 shall survive termination of the Contract.
3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery of Goods
4.1 Where it has been agreed that the Supplier shall deliver the Goods then the Supplier shall deliver the Goods to the agreed location (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed upon the arrival of the Goods at the Delivery Location. Unless otherwise agreed by the Supplier in writing the Customer shall be responsible for unloading of the Goods at the Delivery Location and for any damage caused by unloading.
4.2 Where it has been agreed that the Customer shall collect the Goods then the Customer or its agent shall collect the Goods from the Supplier’s premises as notified by the Supplier to the Customer or from such other location as may be agreed with the Customer prior to delivery (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready for collection. Delivery of the Goods shall be completed on the loading of the Goods by the Supplier at the Delivery Location.
4.3 Any dates quoted for delivery of the Goods 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 Goods or performance of the Services 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 Goods and/or the Services.
4.4 If the Customer fails to accept delivery of the Goods when the Supplier attempts to deliver them (or, as applicable, fails to collect the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready for collection) then, except where such failure or delay is caused by the Supplier’s failure to comply with its obligations under the Contract:
4.4.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the sixth Business Day following the day on which the Supplier (a) first attempted to make delivery or (b) notified the Customer that the Goods were ready for collection (as applicable); and
4.4.2 the Supplier shall store the Goods and charge the Customer for all related costs and expenses.
4.5 If 10 Business Days pass after the day on which the Supplier (a) first attempted to make delivery or (b) notified the Customer that the Goods were ready for collection (as the case maybe) and the Customer has still not taken physical possession of the Goods, then without prejudice to any other rights or remedies the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting storage, transport and selling costs, account to the Customer for any excess over the price of the Goods and/or Services or charge the Customer for any shortfall below the price of the Goods and/or Services.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for by the Customer separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.7 If the Supplier delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered and the Supplier being satisfied of the same, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.8 No claim for shortages will be considered by the Supplier unless the Supplier is advised in writing within 7 days of the Customer’s receipt of the Goods and no allowance for claims for shortages will be made unless the Supplier is promptly given an opportunity of verifying the same.
5. Warranty as regards Sale Goods
5.1 The Supplier warrants that on delivery and for a period of 12 months after the date of delivery (Claims Period) the Sale Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification; and
5.1.2 be free from material defects in material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier during the Claims Period within a reasonable time of discovery that some or all the Sale Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Sale Goods; and
5.2.3 the Customer (if directed to do so by the Supplier) promptly returns such Sale Goods to the Supplier’s place of business or to another location designated by the Supplier at the Customer’s cost,
and upon the Supplier being satisfied that the warranty claim is valid, then the Supplier shall, at its option, repair or replace the defective Sale Goods, or refund the price of the defective Sale Goods in full.
5.3 The Supplier shall not be liable for the Sale Goods’ failure to comply with the warranty set out in clause 5.1 if one or more of the following apply:
5.3.1 the claim is made more than 12 months after delivery.
5.3.2 the Customer makes any further use of such Sale Goods after giving a notice in accordance with clause 5.2;
5.3.3 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Sale Goods or (if there are none) good trade practice regarding the same.
5.3.4 the defect arises because of the Supplier following any drawing, design or specification supplied and/or agreed by the Customer.
5.3.5 the Customer alters or repairs such Sale Goods without the written consent of the Supplier.
5.3.6 the defect arises because of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
5.3.7 the Sale Goods differ from their description or the Specification because of changes made to ensure they comply with applicable statutory or regulatory standards; and
5.3.8 the defect arises because of the Specification (as prescribed or agreed by the Customer) being defective or not otherwise being fit for purpose or because of the Inherent Risks.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Sale Goods’ failure to comply with the warranty set out in clause 5.1. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.5 These Conditions shall apply to any repaired or replacement Sale Goods supplied by the Supplier. Any Sale Goods repaired or replaced by the Supplier shall benefit from a warranty (a) equal to the remaining balance of the Claims Period of the original Sale Goods repaired or replaced supplied as at the date the claim is made or (b) period of 10 days from the date of repair or replacement, whichever is the longer period.
6. Warranty as regards Customer Goods
6.1 The Supplier warrants that the Services will be supplied to the Customer:
6.1.1 with reasonable skill and care; and
6.1.2 in all material respects in accordance with the Service Specification.
6.2 Subject to clause 6.3, if:
6.2.1 the Customer gives notice in writing to the Supplier within 12 months of delivery of the Customer Goods that it considers that the Supplier has not complied with the warranty set out in clause 6.1;
6.2.2 the Supplier is given a reasonable opportunity of examining such Customer Goods; and
6.2.3 the Customer (if directed to do so by the Supplier) promptly returns such Customer Goods to the Supplier’s place of business or to another location designated by the Supplier at the Customer’s cost,
and upon the Supplier being satisfied that the warranty claim is valid, then the Supplier shall, at its option, repair or replace the defective Customer Goods, or refund the price of the defective Services in full.
6.3 The Supplier shall not be liable under the warranty set out in clause 6.1 if one or more of the following apply:
6.3.1 the claim is made more than 12 months after delivery.
6.3.2 the Customer makes any further use of such Customer Goods after giving a notice in accordance with clause 6.2;
6.3.3 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Customer Goods or (if there are none) good trade practice regarding the same.
6.3.4 the defect arises because of any underlying defect or fault in the Customer Materials.
6.3.5 the defect arises because of the Customer Materials not being suitable for the application of the Services or because of the Inherent Risks.
6.3.6 the defect arises because of the Specification (as prescribed or agreed by the Customer) being defective or not otherwise being fit for purpose.
6.3.7 the Customer alters or repairs such Customer Goods without the written consent of the Supplier; and
6.3.8 the defect arises because of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of its failure to comply with the warranty set out in clause 6.1.
7. Title and risk - Customer Materials and Customer Goods
7.1 In circumstances where the Customer provides Customer Materials in respect of which the Supplier is to perform Services under a Contract then (i) the Customer Materials and the resulting Customer Goods will be at the Supplier’s risk only whilst they are in the Supplier’s possession and (ii) title to the Customer Materials and the Customer Goods shall always remain with the Customer during the Contract.
7.2 The Supplier may exercise a lien over the Customer Materials and the Customer Goods in its possession until such time as the Supplier has received payment in full of the Customer of (i) all amounts due to the Supplier under each Contract and (ii) all other sums due to the Supplier from the Customer under any other contracts or under any other accounts whatsoever which are outstanding.
7.3 The risk in the Customer Goods shall pass to the Customer on completion of delivery.
8. Title and risk - Sale Goods
8.1 The risk in the Sale Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Sale Goods shall not pass to the Customer until the earlier of:
8.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Sale Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Sale Goods shall pass at the time of payment of all such sums; and
8.2.2 the Customer resells the Sale Goods, in which case title to the Sale Goods shall pass to the Customer at the time specified in clause 8.4.
8.3 Until title to the Sale Goods has passed to the Customer, the Customer shall:
8.3.1 store the Sale Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property.
8.3.2 not remove, deface, or obscure any identifying mark or packaging on or relating to the Sale Goods.
8.3.3 maintain the Sale Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery.
8.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.2.2 and clause 15.2.3; and
8.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to (a) the Sale Goods and (b) the ongoing financial position of the Customer.
8.4 Subject to clause 8.5, the Customer may resell or use the Sale Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Sale Goods. However, if the Customer resells the Sale Goods before that time:
8.4.1 it does so as principal and not as the Supplier’s agent; and
8.4.2 title to the Sale Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
8.5 At any time before title to the Sale Goods passes to the Customer, the Supplier may:
8.5.1 by notice in writing, terminate the Customer’s right under clause 8.4 to resell the Sale Goods or use them in the ordinary course of its business; and
8.5.2 require the Customer to deliver up all Sale Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Sale Goods are stored to recover them.
9. Supply of Services
9.1 The Supplier shall provide the Services with reasonable skill and care.
9.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
10. Customer's acknowledgment and obligations
10.1 The Customer agrees and acknowledges the associated and inherent hazards of processing certain materials, for example (without limitation) cracking, distortion, failure to respond to heat treatment, the effects of hardenability, sharp corners, segregation, manufacturing history, section, size etc (Inherent Risks) The Customer acknowledges that it enters the Contract in full knowledge, awareness, and acceptance of the Inherent Risks.
10.2 The Customer shall:
10.2.1 ensure that the terms of the Order and any information it provides in relation to the Specification are complete and accurate.
10.2.2 co-operate with the Supplier in all matters relating to the Contract.
10.2.3 provide the Supplier with such information and materials as the Supplier may reasonably require supplying the Goods and/or the Services and ensure that such information is complete and accurate in all material respects.
10.2.4 comply with all applicable laws, including health and safety laws.
10.2.5 comply with any additional obligations agreed in the Contract whether set out in the Specification or otherwise.
10.2.6 ensure that the Customer Materials are of satisfactory quality and suitable for the receipt of the applicable Services and processing.
10.2.7 ensure that any Specification it provides to and/or agrees with the Supplier is correct and fit for its purpose.
10.3 In relation to the supply of Customer Goods, the Supplier accepts no liability if the Customer Goods are subsequently found to be outside the applicable Specification or in any way unsuitable for use or further manufacturing operations because of:
10.3.1 the unsuitability of Customer Materials supplied by the Customer; and/or
10.3.2 incorrect or unclear instructions being provided by the Customer.
10.4 The Supplier reserves the right in its sole discretion to discontinue the provision of any Services (including processing) immediately if it considers that the Customer Materials are or appear to be unsuitable for such Services or processing.
10.5 The Customer shall indemnify the Supplier against any loss, damage, and costs that the Supplier suffers or incurs as a result of the Customer’s provision of (i) unsuitable Customer Materials and/or (ii) incorrect information. The Supplier reserves the right to charge the Customer for the cost of making good or replacing any plant, machinery and goods belonging to or in the Supplier’s care which are damaged because of:
10.5.1 the Customer’s provision of unsuitable Customer Materials; and/or
10.5.2 errors or defects in the applicable Specification.
10.6 Any special packing or identification requirements required by the Customer must be made known to the Supplier with the Order and will incur an additional charge to be agreed prior to processing.
10.7 Provision of material samples, requests for physical stock takes, on-site inspections certification and any variations to the Contract will all incur additional charges in accordance with the Supplier’s prevailing standard scale of charges.
10.8 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
10.8.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend its performance of the Contract until the Customer remedies the Customer Default; and
10.8.2 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
11. Charges, payment, and cancellation
11.1 Subject to clause 11.3 the price and payment terms in respect of the Contract shall be as set out in the Supplier’s quotation (or where applicable in any later document prepared by the Supplier and sent to the Customer prior to the Contract coming into force). The price shall be in payable pounds sterling unless otherwise agreed by the Supplier in writing. In any event that the Supplier reserves the right to specify payment on account particularly as regards new and/or overseas based customers.
11.2 Unless otherwise agreed by the Supplier in writing the Contract price shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which if incurred by the Supplier shall be invoiced to the Customer.
11.3 The Supplier reserves the right to increase the Contract price by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Supplier performing its obligation under the Contract that is due to any one or more of the following: (a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in the price of metals (including steel), labour, materials, utilities, energy costs and other manufacturing costs); (b) any request by the Customer to change the Specification or to change delivery date(s), or change the quantity of Sales Goods or Services ordered; and (c) any delay caused by any instructions (or lack of instructions) of the Customer in respect of the Contract or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods and/or Services.
11.4 In respect of the supply of (i) Sales Goods and (ii) Customer Goods the Supplier shall invoice the Customer on or at any time after completion of delivery.
11.5 The Customer shall pay each invoice submitted by the Supplier: (a) within 30 days from the end of the month of invoice (or in accordance with any other credit terms expressly agreed by the Supplier and confirmed in writing to the Customer); and (b) in full and in cleared funds to a bank account nominated in writing by the Supplier. Time for payment by the Customer shall be of the essence of the Contract.
11.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, 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 applicable Services and/or Goods at the same time as payment is due for the supply of the Services and/or Goods.
11.7 Where the Supplier and the Customer have agreed a Contract that is a Call off Contract then for the avoidance of doubt the Customer is contractually obliged to purchase the Goods at the agreed volume, at the agreed intervals and at the agreed price with the Customer having no right to cancel or to terminate the Contract at will. Where the Customer fails to call off a portion of the Goods under a Call off Contract (a missed portion) in accordance with the contractual timescale then without prejudice to any other rights and remedies of the Supplier, the Supplier shall be entitled to render an invoice to the Customer for the sale price of the missed portion of Goods and such invoice shall be payable by the Customer immediately upon its presentation and Delivery of the Goods (or collection as the case maybe) shall me made after the Customer has paid the Supplier’s invoice.
11.8 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then without prejudice to any other rights and remedies of the Supplier, the Supplier may charge interest under the Late Payment of Commercial Debts (Interest) Act 1998.
11.9 All amounts due by the Customer under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding. 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.
11.10 The Supplier may appropriate any payment made by the Customer to any Goods or Services supplied by the Supplier, whether under the Contract or otherwise, as the Supplier shall think fit and notwithstanding any purported appropriation by the Customer.
11.11 Cancellation by the Customer will only be accepted at the absolute discretion of the Supplier and in any event on condition that any costs or expenses incurred by the Supplier up to the date of cancellation and all loss or damage resulting to the Supplier by reason of such cancellation will be paid by the Customer to the Supplier upon demand. Acceptance of such cancellation will only be binding on the Supplier if the Supplier expressly accepts to the cancellation in writing.
12. Intellectual property rights
12.1 All IPRs arising out of or in connection with each Contract (other than IPR in any materials provided by the Customer) shall be owned by the Supplier.
13. Confidentiality
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients, or suppliers of the other party except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
14. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Nothing in the Contract shall limit or exclude any liability of the Supplier which cannot legally be limited or excluded, including liability for: (a) death or personal injury caused by negligence and (b) fraud or fraudulent misrepresentation.
14.3 Subject to clause 14.2 the Supplier shall not be liable to the Customer for any of the following types of loss whether direct or indirect, that is: (a) loss of profit, (b) loss of sales or business, (c) loss of production and (d) loss of or damage to goodwill.
14.4 Subject to clause 14.2 the Supplier shall not be liable for any indirect or consequential loss arising under or in connection with the Contract.
14.5 Subject to clause 14.2 the Supplier shall not be liable for any failure of the Goods to meet or comply with the Specification as a result of the Inherent Risks, where such Inherent Risks materialise for reasons other than as a result of the Supplier failing to exercise reasonable skill and care.
14.6 Subject to clause 14.2 the Supplier shall not be liable for any rust that appears on the Goods after delivery as a result of the Customer’s failure to follow the Supplier’s oral or written instructions as to storage or (if there are none) good trade practice regarding the same.
14.7 Subject to clauses 14.2, 14.3, 14.4, 14.5 and 14.6 the Supplier’s total liability to the Customer in respect of all other loss and damage arising under or in connection with a Contract shall not exceed 150% of the contract price of that Contract; and for these purposes the contract price shall mean: (i) the price of the Sale Goods or Services (as the case maybe) under the Contract; and (ii) excluding for the avoidance of doubt any amounts attributable to any value added tax, taxes, carriage and insurance costs.
14.8 The warranties set out in clauses 5.1, 6.1 and 9.1 are the only warranties which apply to the Contract (as applicable). All other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
15. Termination
15.1 Without affecting any other right or remedy available to it, the Supplier party may terminate the Contract at any time by giving the Customer not less than 5 Business Days written notice.
15.2 Without affecting any other right or remedy the Supplier terminate the Contract with immediate effect by giving written notice to the Customer if one or more of the following events occur:
15.2.1 the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 5 days after receipt of notice in writing to do so.
15.2.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
15.2.3 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
15.2.4 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
15.2.5 the Customer (being an individual) is the subject of a bankruptcy petition, dies or, by reason of illness or incapacity (whether mental or physical) is incapable of managing his own affairs or becomes a patient under any mental health legislation.
15.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
15.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of the Services and all further deliveries of Goods under the Contract or under any other contract between the Customer and the Supplier if one or more of the following events occur: (a) the Customer fails to pay any amount due under the Contract on the due date for payment, (b) the Customer becomes subject to any of the events listed in clause 15.2.2 to clause 15.2.3, or (c) the Supplier reasonably believes that the Customer is about to become subject to any of them and (d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
16. Consequences of termination
16.1 On termination of the Contract the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
16.2 On termination of the Contract the Customer shall upon request return any Sale Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
16.3 Termination of the Contract shall not affect any rights, remedies, obligations, and liabilities of the parties that have accrued up to the date of termination including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.4 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect. Clause 14 shall survive termination of the Contract.
17. General
17.1 Force majeure: If the Supplier is prevented, hindered, or delayed in or from performing any of its obligations under the Contract by because of a Force Majeure Event, then the Supplier shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
17.2 Assignment and other dealings. The Supplier may at any time assign, transfer, subcontract, delegate, or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, subcontract, delegate, or deal in any other manner with any or all its rights or obligations under the Contract without the prior written consent of the Supplier.
17.3 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Contract.
17.4 Variation. No variation to the Contract shall be effective unless it is in writing and authorised representatives of the parties.
17.5 Waiver. 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.
17.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
17.7 Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a Supplier) or its principal place of business (in any other case). Any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; and (b) if sent by pre-paid first-class post or by a next working day delivery service at 9.00 am on the second Business Day after posting. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.8 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Contract.
17.10 Data Protection. The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the provision of the Goods and Services.
17.11 Export Terms. Where the Goods are to be supplied by way of export from the United Kingdom (UK) then the following provisions of this clause 17.11 shall apply:
17.11.1 the latest version of the ‘Incoterms’ of the International Chamber of Commerce in force at the time when the Contract is made shall apply so far as they are not inconsistent with these terms and, unless otherwise agreed in writing by the Supplier, the Goods are supplied ex-works the Supplier’s UK business premises.
17.11.2 where the Goods are sent by a route including sea transport the Supplier shall be under no obligation to give a notice under Section 32(3) of the Sale of Goods Act 1979.
17.11.3 the Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any customs or duties thereon.
17.11.4 unless otherwise specifically agreed in writing by the Supplier payment of all amounts due to Supplier under a Contract shall be made against a proforma Invoice; that is fully paid to the Supplier by the Customer before the Supplier is obliged to dispatch the Goods from its premises; and
17.11.5 the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract.
