In these Conditions:-
"The Company" means AD Metal Spinners Ltd.
"The Contract" means any contract formed between the Customer and the
Company for the spinning of metal goods.
"The Customer" means the person, firm, or company placing any order with the Company for metal spinning.
"The Goods" means the goods (or any part of them) produced and supplied by the Company pursuant to the Contract.
References herein to metal spinning shall be deemed to include (but not be limited to) turning, milling, etc or any associated processes and any other treatments or processes applied by the Company.
(a) Unless otherwise expressly agreed in writing by a director of the Company these Conditions are the only terms on which the Company accepts any order or Goods for metal spinning. These Conditions will be deemed to have been read & agreed by the Customer and shall apply to all orders, whether or not these Conditions were specifically referred to at the time of ordering, to the exclusion of all other terms and conditions including any contained in an acceptance of a quotation, a form of order or any other document issued by the Customer. Delivery of the Goods to the Company or collection of the Goods by the Company (as the case may be) shall be deemed to be conclusive evidence of the Customer's acceptance of these Conditions.
(b) The Company and the Customer acknowledge that these Conditions have been given due consideration and that they are considered fair and reasonable by the Company and the Customer. The Customer shall not order unless they agree to these conditions.
(c) Each order placed by the Customer for metal spinning by the Company shall be deemed to be an offer by the Customer to purchase metal spinning services subject to these Conditions.
(d) No order placed by the Customer which the Company has accepted may be cancelled or varied by the Customer except with the written agreement of the Company. The Customer shall be liable for all losses (including loss of profit, costs, damages, charges and expenses) suffered or incurred by the Company as a result of such cancellation or variation.
(e) Without prejudice to conditions 1(f) and 2(b) below, any representations to be binding upon the Company must be specifically agreed to in writing by the Company.
(f) The Customer acknowledges that save in the circumstances provided for in condition 1(e) above and subject to condition 11 (g) below, no representation whether oral or in writing has been made by any of the Company's agents representatives or employees which has led the Customer to enter into the Contract.
(a) Unless previously withdrawn the Company's quotations are only open for acceptance within three months from the date thereof and where given without sight of the Goods are provisional only.
(b) Specifications, descriptions and illustrations contained in the Company's catalogues, brochures or other advertising materials in whatever form, whether hard copy format, electronic format or otherwise, are intended to give only a general idea of the services concerned and the possible result of any metal spinning and no such specifications, descriptions or illustrations shall form any part of the Contract or form any warranty or representation by the Company.
(c) The Company may make any changes to the specification, materials or finishes which are required to conform with any applicable safety or other statutory requirements.
(d) After examination of samples of the Goods in bulk the Company has the right to amend any quotation or decline to accept Goods for metal spinning or not to proceed with any order, without any further liability to the Customer.
(e) The Company may by giving notice to the Customer at any time up to receipt of the Goods by the Company for metal spinning increases on any price quoted to reflect any increase in the cost of metal spinning which is due to any increase in the cost of labour, materials or other manufacturing costs and transport costs.
(f) Unless otherwise stated prices are quoted exclusive of VAT.
The Customer hereby warrants that it is either the owner of the Goods delivered to or accepted by the Company for metal spinning or that it is authorised by the owner of the Goods to accept these Conditions on such owner's behalf.
4. Transportation of Goods
(a) If the price quoted by the Company includes transport of the Goods to and from the Company's works the Company will arrange transport by whatever method the Company considers appropriate (which may be transport by a third party carrier, rather than by the Company). If the Goods are transported by vehicles of a third party carrier Goods shall be carried at the Customers' risk and the Company shall not otherwise be liable for any loss or destruction of or damage to the Goods in transit.
(b) If the price quoted by the Company does not include transport of the Goods to and from the Company's works the Customer undertakes at its own expense and risk both to deliver the Goods to the Company's works on the date and at the time notified by the Company and to collect them within 10 working days after notification by the Company that the metal spinning has been completed.
(c) The Customer shall be responsible for the adequate packing of the Goods to protect them in transit against weather conditions, impact damage and other transport risks and for the provision of suitable stillages, pallets and other containers. The Customer shall use such packing materials as are suitable for re-use by the Company where the Company is responsible for delivering the Goods to the Customer. No warranty whatsoever is given by the Company that packing materials, cases, cartons and pallets will be returned to the Customer but wherever possible these will be returned to the Customer with the Goods.
5. Variation in Prices
(a) In the event of suspension of work on the Goods at the Customer's request or as a result of the inadequacy or inaccuracy of the Customer's instructions, any price quoted by the Company may be increased to cover any additional costs or expenses incurred by the Company as a result thereof.
(b) If the Customer does not indicate to the Company plainly and correctly the type of Goods, including the make, brand, and grade of Goods to which metal spinning is to be applied and/or fails to give to the Company correct and complete instructions as to the processing, including the specification, required, the Customer shall be liable for any additional costs or expenses incurred by the Company and any loss of profit, loss of business or loss of use of furnaces suffered by the Company whether as a direct or indirect result thereof.
(c) When prices are quoted which include delivery to and/or collection of the Goods from any delivery address outside the United Kingdom, any increase in insurance, packing or freight costs, import duty, internal taxes or any other charges incidental to the delivery of the Goods between the date of the Contract and the date of delivery and/or collection, as the case may be, together with all costs of any trans-shipment and/or deviation of voyage shall be paid by the Customer.
(d) The Customer shall be liable for all costs, charges and expenses whatsoever in connection with the opening, advising, confirmation, negotiation and operation of any letter of credit, the transfer of cash to the Company and/or the release of any shipping documents.
(e) The cost of any variation or modification to the order requested by the Customer after the date of the acceptance of order shall, if such variation or modification is accepted by the Company under condition 1(d), be borne by the Customer.
6. Unsuitability of Goods for metal spinning
It shall be the Customer's responsibility to ensure that the Goods are suitable for metal spinning. However if at any stage the Company in its sole discretion considers that the Goods are unsuitable for metal spinning (or, if metal spinning has begun, for further metal spinning) whether in accordance with the Company's quotation or otherwise, the Company will advise the Customer as soon as is reasonably practicable and shall be entitled to discontinue metal spinning forthwith. The Company shall thereupon notify the Customer of the Company's outstanding charges in respect of metal spinning carried out up to the date of such discontinuance and the Customer shall pay the same within 28 days of the date of such notification. Unless the Company agrees in writing to arrange transport the Customer will collect the Goods at its own expense and risk from the Company's works as soon as possible following notification of the discontinuance of the metal spinning.
7. Carrying Out of Work
Any times quoted for collection and/or delivery of the Goods and/or for completion of the metal spinning are estimates only. The Company shall not be liable for any loss (including loss of profit, loss of use, loss of business, loss of goodwill (whether arising as a direct or indirect loss) or any indirect, special or consequential loss or any costs, damages or expenses arising directly or indirectly out of any delay in delivery or collection of the Goods or failure to complete the metal spinning within such time, even if caused by the Company's negligence) and time shall not be of the essence in respect thereof. Any times quoted for metal spinning shall run from receipt by the Company of the Goods and of all information required by the Company in order to put the metal spinning in hand. In any event, the time for completion of the metal spinning shall be extended by a reasonable period if completion of the metal spinning is delayed as a result of the nature or lack of instructions from the Customer, or by any cause beyond the Company's control.
The Company may sub-contract the whole or any part of the Contract (unless specifically instructed otherwise in writing by the Customer, at or prior to the time the Contract is made). The Company may also store all or any part of the Goods on premises other than the Company's premises.
9. Force Majeure
(a) If the Company is in any way prevented from or delayed in performing any of the Company's obligations under the Contract by reason of decisions or actions of any Government or other authority, war or threat of war, fire, explosion, material damage to or failure of plant and equipment, severe weather conditions, materials shortages or inadequacies, interruption or reduction in communications, delay or reduction of availability of transport, power or utilities failure, failure or delay in
obtaining materials required for metal spinning, any strikes, lock-outs or industrial disputes (whether or not involving the Company's work force), accident or any other cause beyond the Company's control the Company shall be entitled at the Company's absolute discretion partially or totally to suspend performance of the Contract for a period equal to the delay caused
by such events and shall not be liable in any way for such failure to perform its obligations under the Contract or for such delay.
(b) If the period for performance of the Contract is extended as a result of such suspension by more than one month the Contract may be terminated (as regards any Goods which have not undergone metal spinning) by the Company or the Customer by written notice to the other but such termination shall be without prejudice to the Company's rights to require the Customer to take delivery of and/or collect any Goods and to pay for the metal spinning of such Goods as are or may be available for delivery and/or collection and without prejudice to any rights which may have accrued to either party prior to the date of such termination. Furthermore if the Company is unable to meet the demands of any of its customers as a result of any such event the Company may allocate the available capacity for metal spinning of goods among such customers as the Company in its absolute discretion considers fit and without incurring any liability whatsoever to any customers of the Company.
10. Payment Terms
(a) Unless otherwise agreed in writing by the Company, payment in full of all sums due under the Contract shall be made in pounds sterling (or such other currency as the Company shall specify) within 30 days following the date of notification to the Customer that the metal spinning has been completed or (if the price includes transport) of delivery of the Goods to the Customer following metal spinning.
(b) Time for payment shall be of the essence. Without prejudice to the Company's other rights and remedies, interest shall be payable at the rate of 4% per annum above the base rate from time to time of Lloyds Bank plc and shall accrue from day to day on all overdue payments (as well after as before judgement).
(c) Any payments due under the Contract shall be made in full without any deduction whether by way of set off, counterclaim or otherwise unless otherwise agreed by the Company in writing or unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
(d) Where the Company specifies that payment will be made by letter of credit, the Customer must establish and maintain in favour of the Company an irrevocable and unconditional letter of credit with or confirmed by the Bank in England satisfactory to the Company. No delivery or collection of Goods will take place until such a letter of credit has been opened and the Company is satisfied with all arrangements relating thereto. If for any reason the bank in question is liable to make payment to the Company under any letter of credit and fails to do so the Customer shall nevertheless remain liable to pay for the metal spinning of the Goods.
(e) Each Contract shall be subject to the Company being satisfied as to the Customer's credit status both prior to and during the period of the Contract. If the Company becomes dissatisfied with the Customer's credit status at any time, the Company may suspend performance of the Contract or withhold delivery of the Goods until the Customer satisfies the Company as to the Customer's creditworthiness or gives the Company such security as the Company shall deem appropriate.
11. Duties and Responsibility
(a)The Customer is reminded of the associated hazards and effects of metal spinningincluding (but not limited to) cracking, distortion and failure to respond to metal spinning and of the effects of hardenability, sharp corners, segregation, manufacturing history, section size, etc. The Customer hereby acknowledges that the Contract is entered into in full knowledge, awareness and acceptance by the Customer of such hazards and effects.
(b) The Company warrants that it will carry out its obligations under the Contract with reasonable care and skill. This warranty shall be the only warranty given in respect of such obligations. All other conditions and warranties express or implied by statute common law or otherwise are hereby excluded.
(c) Subject to condition 11(g) below, the Company shall not in any event be liable for any breach of the warranty given in condition 11(b) above or for any breach of the Contract or breach of statutory duty or tort (including but not limited to negligence) misrepresentation or otherwise including without limitation, for any damage to or loss of Goods as a result of metal spinning by the Company:- unless the methods employed in manufacturing the Goods prior to metal spinningby the Company have taken into account the current state of knowledge in the metal spinning industry and the Customer has ensured that the Goods are made from the correct material and designed to appropriate engineering standards with final machining allowances and have not been
subject to any process or treatment by any person other than the Company which renders them unsuitable for metal spinning and full information concerning the Goods as referred to in condition 5(b) has been supplied to the Company before the commencement of metal spinning; and
(ii) unless the Customer checks the quantity of Goods delivered to or collected by the Customer forthwith and notifies the Company in writing of any alleged shortfall of, damage to, or incorrect metal spinning of the Goods within 14 days thereafter in the case of defects which are reasonably obvious on inspection and in any event within 6 months of delivery; and
(iii) unless the Customer thereafter affords the Company a reasonable opportunity to inspect the relevant Goods and if so requested by the Company returns the allegedly damaged Goods or the Goods the subject of allegedly incorrect metal spinning to the Company's works at the Customer's expense for inspection to take place there; and (iv) unless the Customer has made no use of the Goods alleged to be damaged or the subject of allegedly incorrect metal spinning after it discovers or ought reasonably to have discovered that such Goods were damaged or the subject of incorrect metal spinning; and (v) unless the Goods have not been subjected to misuse or improperly or incorrectly stored after delivery to or collection by the Customer; and
( vi) unless and only to the extent that the allegedly damaged Goods or the Goods the subject of allegedly incorrect metal spinning exceed 5% of each batch (losses/over delivery of up to 5% of each batch being accepted as normal in the metal spinning industry in processing large quantities of small parts).
(d) In the light of the great disparity between the value of the Goods undergoing metal spinning and the charge for metal spinning made by the Company, the liability of the Company:-
(i) for any breach of the warranty given in condition 11(b) above; and
(ii) for any breach of the Contract; and
(iii) for any breach of statutory duty or tort (including but not limited to negligence) misrepresentation or otherwise is limited to two times the charge made for metal spinning of the relevant Goods under the Contract. In the case of breach of warranty given
in condition 11(b) above, instead of refunding or waiving the whole or the appropriate part of the charge for metal spinning the Company may at its option take such steps as the Company considers necessary so as to comply with the said warranty and thereupon this shall be the Company's only liability in respect of such breach of warranty.
(e) The Company shall not under any circumstances be liable for any loss of profit, loss of use, loss of business or loss of goodwill (whether arising as a direct loss or an indirect loss) or for any indirect or consequential loss, injury or damage of any kind whether caused by negligence or otherwise howsoever and whether or not such loss has been suffered by the Customer or by some third party to whom the Customer may be liable and whether or not such loss has been caused by reason of the Goods infringing any patent, registered or unregistered design, copyright, trade mark or service mark or other intellectual property owned or used by
a third party.
(f) Goods are and remain at all times whilst at the Company's works and (unless condition 4(a) above applies) during transportation to and from the Company's works at the entire risk of the Customer who shall be responsible for effecting and maintaining its own insurance cover in relation thereto, it being hereby acknowledged by the Customer that the charges of the Company do not include insurance.
(g) Nothing in these Conditions shall exclude or restrict the Company's liability for fraudulent misrepresentation or for death or personal injury resulting from the Company's negligence.
12. Indemnity by Customer
The Customer will indemnify and keep indemnified the Company in full from and against all direct, indirect and consequential liability, loss, damages, injury, costs and expenses (including legal expenses) awarded against or suffered or incurred or paid by the Company arising out of or as a result of or in connection with:
(a) any claim that the Goods infringe any British or foreign patent, copyright, registered design, design right, trade mark, trade name or other intellectual property right of any third party;
(b) any claim made against the Company in respect of any liability, loss,
damage, cost or expense suffered or incurred by the Company's employees or agents to the extent that such liability, loss, damage, cost or expense was caused by, relates to or arises out of or in connection with the Goods;
(c) any claim made against the Company by any third party to the extent that such liability, loss, damage, cost or expense was caused by, relates to or arises out of or in connection with the Goods and/or the metal spinning thereof by the Company.
13. Jigs or Tooling
Any jigs or tools made by the Company for the purpose of the Contract shall remain the Company's property notwithstanding that the cost thereof may be included in whole or in part in the price charged for metal spinning. All drawings and information relating to such tools and jigs remain the Company's property and the copyright therein remains vested in the Company and the Customer undertakes that it will not copy or make use of such jigs, drawings or information for the benefit of itself or any third party without the Company's prior written consent. If the Customer falls into administration or receivership, all tools jigs etc convert to 100% ownership by the Company, whether for current contracts or previous in time.
The Company shall in respect of all sums due or owing from the Customer under the Contract or any other contract between the Customer and the Company have a general lien on all Goods and property of the Customer in the Company's possession (notwithstanding that metal spinning of such Goods or some of them may have been paid for) and shall after the expiration of 14 days' notice to the Customer be entitled to dispose of such Goods and property as it deems fit and apply the proceeds towards such sums. The Customer will grant at all times an irrevocable right of entry its premises or other owned buildings, vehicles, etc. at any time to take back goods to the values of work expended to its contract order or costs accrued by the Company to the orders concerned.
15. Confidential Information
All specifications, drawings, technical descriptions and details of metal spinning (hereinafter called "information") submitted with the Company's quotation or otherwise supplied to the Customer pursuant to the Contract are supplied in confidence. The Customer shall keep the information confidential and shall not (save as required by law or unless the same is already in the public domain other than as a result of the default of the Customer) disclose the same to any third party without the Company's prior
written consent and shall use the same only for the purposes of the Contract. Nothing in this condition 15 shall prevent the Company from undertaking or offering to undertake for third parties any work or services similar to or designed to achieve the same results as the work or services provided under the Contract.
(a) The Customer cannot terminate the Contract without the written consent of the Company.
(b) The Company shall be entitled, without prejudice to any of its other rights, to terminate the Contract or any other contract with the Customer forthwith by notice to the Customer:-
(i) if the Customer (whether under the Contract or any other contract between the Customer and the Company) is overdue with any payment or commits any breach of contract which is incapable of remedy or which (if the same be capable of remedy) the Customer fails to remedy within 14 days of the Company's written notice so to do; or
(ii) if any distress or execution shall be levied on the Customer's assets or if the Customer shall make or offer to make any arrangement or composition with creditors or commits an act of bankruptcy or if any petition or receiving order in bankruptcy or any administration order shall be presented or made against the Customer or, where the Customer is a limited company, any resolution or petition to wind up the same (other than for the purposes of reconstruction or amalgamation of a solvent
company) shall be passed or an administration order made or if a receiver, manager, administrative receiver or administrator is appointed in respect of the Customer's assets and undertaking or any part thereof or if the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
( iii) if the Company has reasonable doubts regarding the solvency of the Customer.
(c) The Company shall without prejudice to its right to terminate the Contract be entitled to suspend further metal spinning of Goods under the Contract or any other contract between the Customer and the Company:
(i) if any of the events mentioned in condition 16(b) above occur; or
(ii) if and to the extent that the value of the Goods delivered but not paid for exceeds (or if delivered would exceed) the Customer's credit limit whether or not advised to the Customer and whether or not payment is overdue.
(d) Notwithstanding any termination or suspension in accordance with conditions 16(b) or 16(c) above the Customer shall pay the Company for all work done up to and including the date of such suspension or termination and shall in addition indemnify the Company against any resulting loss damage or expense incurred by the Company in connection with such suspension or termination including, without limitation, the cost of any material plant or tools used or intended to be used therefore and the cost
of labour and other overheads including a percentage in respect of profit.
If at any time one or more of these Conditions (or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason at law the same shall be deemed omitted here from and the validity and/or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired thereby.
The rights and remedies of the Company under the Contract shall not be diminished waived or extinguished by the granting of any indulgence forbearance or extension of time by the Company nor by the failure or delay by the Company in asserting or exercising any such rights or remedies.
Notices to be served hereunder shall be in writing and delivered by hand or sent by post, e-mail or fax to either party at its last known address. Notices sent by post shall be deemed served 2 working days after posting and notices sent by e-mail or fax or delivery by hand shall be deemed served when received.
20. Applicable Law
The Contract shall in all respects be construed in accordance with and be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.