In these Terms and Conditions the following expressions will have the following meanings unless inconsistent with the context:
‘Affiliates’any person which is, in relation to the Company, its parent undertaking or its subsidiary undertaking or a subsidiary undertaking of its parent
undertaking or any other person controlled by or under the same control either directly or indirectly and ‘parent undertaking’ and ‘subsidiary
undertaking’ shall have the meanings attributed to them in section 1162 Companies Act 2006
‘Company’ All Metal Welding Ltd (registered number 08546462) whose registered office address is at GLEBE HOUSE, FARRINGDON, EXETER, DEVON, EX5 2HY or any affiliates as appropriate.
‘Confidential Information’ all information in respect of the business of the Company including, but not limited to, know-how, pricing or other matters
connected with the Goods or Services, and information concerning the Company’s relationships with actual or potential clients, customers or suppliers and the needs and requirements of the Company and of such persons and any other information which, if disclosed, will be liable to cause harm to the Company.
‘Contract’ any contract between the Company and the Seller for the sale and purchase of the Goods or supply of the Services formed in accordance with
‘Goods’ any goods which the Seller supplies to the Company (including any of them or any part of them) under a Contract
‘Order’ any purchase order of the Company (including of the avoidance of doubt any Affiliates) for the Goods or Services incorporation these Terms and Conditions
‘Restricted Articles’ Goods (including any of them or any part of them) which may be hazardous and are referred to by the Company in its Order as ‘Restricted Articles’ and require, for delivery purposes, extra precautions in packing, handling, transporting and delivering
‘Seller’ The person(s) firm or company from whom the Company orders the Goods
‘Services’ any services which the Company receives from the seller (including any part of them under a Contract
‘Terms and Conditions’ the standard terms and conditions of purchase set out in this document together with any special terms agreed in writing between the Seller and the Company.
2.1 Subject to any variation under condition 12.7 the Contract will be upon these Terms and conditions, to the exclusion of all other terms and
conditions and all previous oral or written representations, including any terms or conditions which the Seller purports to apply under any acknowledgement or confirmation of order, quotation specification, delivery note, invoice or similar document, whether or not such document is referred to in the Contract. Nothing in this Condition 2.1 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
2.2 Each quotation for the Goods or Services from the Seller will be deemed to be an offer by the Seller to sell the Goods or Services upon these Terms and Conditions. All quotations provided by the Seller, including the price provision, will remain open for 45 days from its date. The Contract is only formed when a written acceptance of the quotation is served by the Company on the Seller. No contract will exist prior to services of such notice of acceptance.
3.1 The quantity, quality and description of the Goods and Services will be as specified in the Seller’s quotation and/or in any applicable specification supplied or advised by the Company to the Seller. Precise conformity of the Goods and Services with the Contract is of the essence and the Company will be entitled to reject the Goods or terminate the Contract under condition 8.1 if the Goods or Services are not in conformance, however slight the breach maybe. Any breach of this condition is deemed a material breach which is not capable of remedy under Condition 8.1
3.2 The Company may at any time make changes in writing relating to the Order. If such changes result in an increase in cost of, or time required for, the performance of the Contract, an equitable adjustment will be made to the price, delivery schedule or both. Any such claim or adjustment must be approved by the Company in writing before the Seller proceeds with such changes.
4. PRICE AND PAYMENT
4.1 The price payable for the goods or Services will be that stated in the Order and, unless otherwise stated in that Order, will be exclusive of any costs of packaging and carriage, VAT and any other applicable sales tax or duty which will be added to the sum in question. The price will be fixed for the duration of the Contract.
4.2 The Seller may invoice the Company for the Goods on or at any time after delivery, or for the Services on or at any time after performance quoting the number of the Order in each Invoice and the Company will pay the price of the Goods within 30 days of receipt of such Invoice.
4.3 The Seller must submit the invoice to the Company in English. The Invoice must specify the quantity of Goods, a description of the Goods or Services, number of the Order and a delivery number. Invoices which fail to specify this information will not be in conformance with the Contract and consequently will not be accepted or paid by the Company.
The Seller may not deliver the Goods by separate instalments or perform the Services in stages unless specifically agreed in writing by the Company. If the Company does agree, the Contract will be construed as a separate contract in respect of each instalment or stage.
6.1 The Goods will be delivered to and the Services will be performed at the address stated in the Order during the Company’s normal office hours on the date or within the period specified in the Order, unless otherwise specified by the Company.
6.2 Time for delivery or performance will be of the essence.
6.3 The Seller will ensure that:
6.3.1 the Goods are marked in accordance with the Company’s instructions and any applicable regulations or requirements of the carrier and properly packed and stored so as to reach their destination in an undamaged condition;
6.3.2 each delivery is accompanied by a customs invoice (where applicable) and a prominently displayed delivery note which shall be issued in English and which shows, interlaid, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered;
6.3.3 each delivery note is signed and dated by the Company upon delivery;
6.3.4 the Company is supplied on delivery of the Goods with all operating and safety instructions, warning notices clearly displayed and other information as may be necessary for their proper use, maintenance and repair for the Company to accept delivery of the Goods; and
6.3.5 Restricted Articles are marked, packed, transported and delivered according to the IATA/ADR/IMDG rules and regulations in force at the time of delivery and that all documents/certificates prescribed in IATA/ADR/IMDG accompany the Goods, but should not be enclosed in the packages.
6.4 The Company will not be deemed to have accepted the Goods until it has had 28 days to inspect the items in the following delivery. The Company will also have the right to reject the Goods as thought they had not been accepted for 28 days after any latent defect in the Goods has become apparent.
6.5 Risk in and ownership of the Goods will pass to the Company on delivery.
7. REMEDIES AND INDEMNITY
7.1 Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with or the Seller fails to comply with any of the terms of the Contract, the Company will be entitled (but not obliged) to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Company:
7.1.1 to rescind the Order;
7.1.2 to reject the Goods (in whole or in part) and return them to the seller at the risk and cost of the Seller on the basis of a full refund for the Goods so returned being paid forthwith by the Seller;
7.1.3 at the Company’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
7.1.4 to refuse to accept any further deliveries of the Goods but without any liability to the Company;
7.1.5 to carry out at the Seller’s expense any works necessary to make the Goods comply with the Contract; and
7.1.6 to claim such damages (whether resulting from direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profit) as may have been sustained in consequence of the Seller’s breach of the Contract.
7.2 The Seller will indemnify, keep indemnified and hold harmless the Company from and against all costs (including the cost of enforcement), expenses, liabilities, injuries and direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgements which the Company incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure in performance by the Seller of the terms of the Contract.
7.3 The Seller will maintain with a reputable insurance company the necessary insurances to cover its potential liability under the Contract and will upon request provide satisfactory evidence to the Company that such insurances have been taken our and are being maintained.
8.1 The Company may by written notice terminate the Contract immediately if the Seller is in material breach of the Contract or enters into insolvency, bankruptcy, any arrangement with its creditors or any other arrangement or situation which has a like effect. Failure to deliver the Goods or perform the Services on the due date in accordance with Condition 6.1 is a material breach of the terms of the contract which is not capable of remedy.
8.2 The termination of the Contract, however arising, is without prejudice to the rights, duties and liability of either the Seller or the Company accrued prior to termination. The conditions which expressly or impliedly have effect after termination will continue to be in force notwithstanding termination.
9.1 All materials, equipment, tools, dies and moulds supplied by the Company to the Seller will at all times be and remain the exclusive property of the Company.
9.2 The Company authorises the Seller to use its intellectual property solely for the purpose of exercising its rights and performing its obligations under the Contract. The Seller will have no other rights whatsoever in respect of the Company’s intellectual property rights.
10.1 The seller warrants to the company that the goods or services; Will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 (as amended) and fit for any purpose held out by the seller or made known to the seller either in writing or orally at or prior to the contract being formed.
Will be Free from defects in design, material and workmanship.
Will correspond in every respect with any specifications, drawings, samples or descriptions provided by the company.
Will comply with all statutory requirements, regulations and voluntary codes relating to the goods or services and their sale and supply and performance.Will be so formulated, designed, constructed, finished and packaged as to safe without any risk to health.
Will be performed by appropriately qualified, trained and experienced personnel with a high standard of skill, care and diligence and in accordance with the contract.
Will be performed to such standard of quality generally observed in the industry for similar services, and will not infringe the rights of any third party.
11.1 The seller will keep confidential any and all confidential information that it may acquire.
11.2 The seller will not use the confidential information for any purpose other than to perform its obligations under the contract. The seller will ensure that its officers and employees comply with the provision of this.
11.3 The obligations of the seller set out in in conditions 11.1 and 11.2 will not apply to any information which
11.3.1 is publically available through no act or omission of the seller.or
11.3.2 the seller is required to disclose by order of a court or regulatory body of competent jurisdiction.
12.1 Time for performance of all obligations of the seller is of the essence.
12.2 Each right or remedy of the company under any contract is without prejudice to any other right or remedy of the company under this or any other contract.
12.3 Any condition or part of the contract is found by any court, tribunal, administrate body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be served from that contract and will be ineffective, without, as far as possible, modifying any other provision or part of the contract and this will not affect any other provisions of the contract which will remain in full force and effect.
12.4 No failure or delay by the company to excurse any right, power or remedy will operate as a waiver of it, nor will any partial exercise prelude any further excurses of the same, or of any other right, power or remedy.
12.5 The Company may assign, delegate, licence, hold on trust or sub-contract all or any part of its rights or obligations under the contract.
12.6 The Contract is personnel to the seller who may not assign, delegate, licence, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Companies prior written consent.
12.7 Save as set out in the contract, these terms and conditions, may only be varied or amended in writing and signed by a Director or Purchasing Manager of the Company.
12.8 The parties of the contract do not intend that any of its terms will be enforceable by virtue of the contracts (Rights of Third Parties) Act 1999 by any person not party to it.
12.9 the formation existence, construction, performance, validity and all aspects whatsoever of the contract or any term of the contract will be governed by English Law as applied in the UK. The English and Welsh Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the contract. The parties agree to submit to that jurisdiction.
12.10 Any notice in connection with the contract will be in writing addressed to the other party at its registered office, or principal place of business and will be delivered by hand, or first class or special delivery post. The notice will be deemed to have been duly served, if delivered by hand, when left at the proper address for service, or if by pre-paid, first class or special delivery post, 48 hours after being posted.