CONDITIONS OF SALE
GENERAL CONDITIONS OF SALE FOR COMPONENT COATING & REPAIR SERVICES LTD.
ORDERS AND CONTRACT
- In this Contract:
“Components” means the Customer’s components given to the Company in relation to the Company’s Services;
“Contract” means any contract between the Customer and the Company incorporating these conditions for the supply of Services;
“Liability” means liability for any and all actions, awards, claims, costs, damages, expenses, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities;
“Services” means any services ordered from the Company by the Customer or to be supplied by the Company to the Customer including but not limited to stripping Components of their coatings and applying coatings to Components;
“Company” means Component Coating and Repair Services Limited (company number: 02990705) whose registered office is at Cabourn House, Station Street, Bingham, Nottinghamshire, NG13 8AQ; and
“Customer” means the person to whom the Company supplies the Services.
- BASIS OF CONTRACT
- These conditions shall govern the agreement between the Customer and the Company to the exclusion of any other terms or conditions.
- Orders placed by the Customer shall still be subject to these conditions whether or not this is expressly stated.
- No variation to these conditions shall be binding on the Company unless agreed between the Customer and one of the Company’s authorized representatives.
- The Customer acknowledges that the Company does not rely on any representation and/or warranty that has not been made in accordance with these conditions.
- SCOPE OF OUR SERVICES
- The Company shall perform the following Services with reasonable skill and care:
- stripping the coating from the Customer’s Component; and /or
- coating the Customer’s Component using the coating the Customer has identified in the Customer’s order or as otherwise specified by the Customer.
- If the Company identifies that the Company cannot strip coating from and/or apply coating to the Customer’s Component the Company shall inform the Customer and the Company may cease to provide the Services in relation to that Component and the Company shall inform the Customer of the decision. The Company shall be entitled to be paid on a quantum meruit basis for that part of the Services performed. The Company may invoice the Customer accordingly.
- If there is a defect in or damage to the Customer’s Component the Company will not be liable to the Customer in relation to any damage that may arise from this defect or damage.
- The Company may provide the Customer with a quotation for the Services. Any such quotations are not binding or capable of acceptance and are estimates only. Quotations may be changed or withdrawn by the Company at any time by the Company’s oral or written notice.
- The Company shall have the right to refuse to accept any orders placed by the Customer for Services.
- The Customer shall be responsible for the accuracy of any order for the Services and the suitability of the coating chosen and for giving the Company any information necessary for the Company to perform the Contract.
- The Contract between the Customer and the Company shall come into effect on acceptance by the Company of the Customer’s order.
- No order for the Services shall be deemed accepted by the Company until confirmed by the Company.
- If the Customer cancels this Contract for any reason the Customer shall have no further recourse against the Company under this Contract.
PRICE AND PAYMENT
- The Company will use its reasonable commercial endeavours to ensure performance of the Services on or by the date(s) specified. Time is not of the essence in relation to such dates.
- Unless the conditions in clause 5.3 are fulfilled, the Customer shall have no right to reject the Services and shall have no right to rescind for late performance unless the due date for performance has passed and the Customer has served on the Company a written notice requiring the Contract to be performed and giving the Company not less than 7 days in which to do so and the notice has not been complied with.
- The Customer shall have the right to reject the Services if the Customer and the Company agree that the Services the Company provided in relation to the Customer’s Component are not of a suitable quality.
- The Company warrants that the Services will be:
- performed by suitably qualified and experienced personnel; and
- performed with reasonable skill and care
- The price of the Services shall be as at the date of the Company’s acceptance of the order.
- The Company’s prices are exclusive of any applicable VAT and/or any other sales tax for which the Customer shall additionally be liable.
- Except as otherwise stated, prices are EXW Incoterms 2000 (ex-works), and the Customer shall be liable to pay the Company’s charges (if any) for transport, packaging and insurance.
- The Company’s terms of payment are net cash within 30 days of invoice, unless the Company informs the Customer that payment is due to the Company before the Company will provide the Services. Time for payment shall be of the essence.
- The Company shall be entitled to render an invoice to the Customer at any stage after completion of the Services.
- The Customer shall pay all sums due to the Company under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies. If the Company and the Customer have agreed that the Services the Company provided in relation to the Customer’s Component were not of a suitable quality the Company will agree either to reduce the price or not to charge the Customer.
- Payment shall not be deemed to be made until the Company has received either cash or cleared funds in respect of the full amount outstanding.
- If payment in full is not made to the Company when due then the Company may withhold or suspend future or current performance of the Services and performance under any other agreement with the Customer.
- If the Customer fails to make payment by the due date may, without prejudice to any other rights or remedies the Company may have, charge interest (both before and after judgment) on the amount unpaid at whichever is the greater of the rate of 4% above the base rate from time to time of the Company’s bank, compounded with monthly rests, or the rate of interest prescribed by law.
- If any Services are cancelled or this Contract terminated or performance is suspended before completion of the Services the Company shall be entitled to be paid on a quantum meruit basis for that part of the Services performed. The Company may invoice the Customer accordingly and such monies shall be immediately due for payment.
- The Customer must inform the Company as soon as practicable of any error or errors in the Company’s invoice which are causing the Customer not to pay the monies due.
INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
- In the Customer’s order the Customer must identify and fully describe the coating to be used under this Contract.
- The Customer is responsible for ensuring that any coating identified is adequate for the Services the Customer requires and/or the application and/or use of the Customer’s Component.
- The Customer is responsible for ensuring that a Component stripped and/or coated by the Company is installed in a manner that is adequate and fit for purpose.
- The Company shall have no Liability for errors in any order, specification or details supplied by the Customer and the Customer is solely responsible for their accuracy.
- The Customer agrees to indemnify and keep indemnified the Company against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and increased administration costs), expenses, damages and any other losses and/or liabilities arising out of the Company’s use of information including that in the order, specifications, details and/or drawings supplied by the Customer.
- If during the course of the Services, the Company considers that the method of performing the Services and/or the scope of the Services should be amended, the Company will discuss any subsequent changes with the Customer. Subject to clause 7.7 below, no variation may be made without the consent of both parties.
- The Company reserves the right to make changes to the coating itself, the method of stripping the coating or the application of the coating and/or the specification of the Services as required from time to time by law, applicable safety requirements or manufacturing requirements provided that they do not have a material adverse effect on the quality and/or performance of the Services. The Company shall use its reasonable endeavours to advise the Customer of such changes and why such changes are required.
- If the Company does make changes to the specification of the Services which have a material adverse effect then the Customer shall have the right to cancel the Contract without Liability.
- The Company shall be free to use for the benefit of the Company’s other customers any skill and/or know-how that the Company may develop or acquire in the performance of the Services.
- In performing the Services, the Company will not knowingly do anything which infringes the intellectual property rights of a third party.
- Each party agrees with the other that it will keep all confidential business information regarding the other party confidential and not disclose or use such information which may be disclosed to it or which it may learn except where such information is public knowledge or it is required to be disclosed by law.
- The Customer is responsible for delivering the Components to the Company’s premises and collecting them from the Company’s premises when the Company has notified the Customer that the Company has completed the Services.
- If the Company has agreed with the Customer to deliver the Components to the Customer’s premises, the Company shall do so at the Customer’s expense.
- Risk of damage to or loss of the Customer’s Components is:
- the Customer’s until the Components arrive at the Company’s premises;
- the Company’s when the Components arrive at Our premises until collection by the Customer or on the Customer’s behalf or the Company arrange for their dispatch on the Customer’s behalf;
- the Customer’s upon collection of the Components by or on behalf of the Customer, or on their dispatch from the Company if the Company arranges this on the Customer’s behalf.
- The Company may dispose of the Customer’s Component (and the Customer agrees that the Company has good title for such a Component) in the following circumstances:
- the Company has completed the Services in relation to the Customer’s Component and the Customer’s Component has not been collected by the Customer or another person within 14 days or the Company has arranged for dispatch of the Component and it has been returned to the Company; or
- the Company informed the Company that the Company cannot strip and/or coat the Component and the Customer’s Component has not been collected by the Customer or another person within 14 days.
- The Company warrants that, as at the date of completion of the Services, the Services will comply in all material respects with the specification set out in the Customer’s order and accepted by the Company.
- All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
LIMITATIONS ON LIABILITY
- If the Customer:
- fails to make any payment to the Company when due;
- breaches the terms of the Contract (and if the breach is capable of remedy have not remedied the breach within 14 days of receiving notice requiring the breach to be remedied);
- persistently breaches any one or more terms of the Contract;
- ceases or threatens to cease business, is declared or becomes insolvent, has a moratorium declared in respect of any of the Customer’s indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application or the giving of any notice) by the Customer or by any other person in respect of any of these circumstances; and/or
- appears reasonably to the Company to be about to suffer any of the above events;
then the Company shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 13.2 below.
- If any of the events set out in clause 13.1 above occurs in relation to the Customer then:-
- the Company may withhold the performance of any Services and cease any Services in progress;
- the Company may cancel, terminate and/or suspend without Liability to the Customer any agreement with the Customer; and/or
- all monies owed by the Customer to the Company shall forthwith become due and payable.
- The Company shall have a lien over all property or goods belonging to the Customer which may be in the Company’s possession in respect of all sums due from the Customer to the Company.
- Upon the termination of the Contract for any reason if any monies due to the Company from the Customer have not been paid within 14 days of such termination the Company may sell any property or goods over which the Company has a lien in accordance with clause 13.3 above (and the Customer agrees that the Company may give good title for such property and/or goods) and shall apply the proceeds of sale firstly in discharging any costs or expenses of sale, secondly in repaying any interest owed by the Customer to the Company, thirdly in payment of any principal sums owed to the Company and fourthly the Company shall account to the Customer for the remainder (if any).
- The Company shall have no Liability to the Customer for a Component stripped and/or coated by the Company which has a defect or damage except where the defect is due to the stripping and/or coating by the Company.
- The Company’s Liability to the Customer in relation to a Component lost or damaged by the Company shall be limited to the scrap value of that Component in the condition the Company received it.
- The Company’s Liability to the Customer if the Company fails to strip and/or coat the Company’s Component with reasonable skill and care shall be limited to the price the Customer paid the Company for providing the Services in relation to that Component.
- The Company shall not be obliged to reimburse the Customer for a Component on a new for old basis or replace any Component on a new for old basis.
- The Company shall have no Liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of non-compliant Services after non-compliance has become apparent or suspected or should reasonably have become apparent.
- The Customer shall give the Company reasonable opportunity to remedy any matter for which the Company is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so the Company shall have no Liability to the Customer.
- The Company shall have no Liability for any:-
- consequential and/or indirect losses;
- loss of profits and/or damage to goodwill;
- pure economic and/or other similar losses;
- special damages;
- aggravated, punitive and/or exemplary damages;
- business interruption, loss of business, contracts, opportunity and/or production; and/or
- claims by third parties.
- The Company’s Liability to the Customer in relation to any damage to tangible property caused by defective Services shall not exceed 150% of the amount payable by the Customer to the Company under this Contract. To the extent that any of the Company’s Liability to the Customer would be met by any of the Company’s insurance then the Company’s Liability shall be extended to the extent that such Liability is met by such insurance.
- The Company’s total aggregate Liability to the Customer shall not exceed 400% of the amount payable by the Customer to the Company under this Contract. To the extent that any of the Company’s Liability would be met by any of the Company’s insurance then the Company’s Liability shall be extended to the extent that such Liability is met by such insurance.
- Each of the limitations and/or exclusions shall be deemed to be repeated and apply as a separate provision for each of:
- Liability for breach of contract (including material and/or fundamental breach);
- Liability in tort (including negligence);
- Liability for breach of statutory duty; and
- Liability for breach of Common Law or other legal basis except the financial caps above which shall apply once only in respect of all the said types of Liability.
- Nothing shall exclude or limit the Company’s Liability for death or personal injury due to the Company’s negligence or any Liability which is due to the Company’s fraud or any other liability which the Company is not permitted to exclude or limit as a matter of law.
- The Customer agrees to indemnify the Company and keep the Company indemnified against any and all losses, proceedings, lost profits, damages, awards, expenses, claims, costs (including increased administration costs and legal costs on a full indemnity basis), actions and any other losses and/or liabilities suffered by the Company and arising from or due to any breach of contract, any tortuous act and/or omission and/or any breach of statutory duty by the Customer.
- No waiver by the Company of any breach of the Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
- The Company has the right to sub-contract part or all of the performance of the Services to third parties, providing that the Company has advised the Customer of the intended use of a sub-contractor or sub-contractors and the Customer has agreed to use of that particular sub-contractor. If the Customer objects to the use of a particular sub-contractor the Customer and the Company may agree on another sub-contractor to be used and the Company may adjust the price of the Services accordingly.
- If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
- The Company shall have no Liability to the Customer for any delay in performance of this Contract to the extent that such delay is due to any events outside the Company’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, shortage of raw materials, subcontractor delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If the Company is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
- The Customer shall not assign its interest in the Contract (or any part) without the Company’s written consent.
- All third party rights are excluded and no third party shall have any right to enforce the Contract except that the Company’s sub-contractors (with the Company’s prior written consent) may enforce the Contract as if they were the Company. Any rights of a third party to enforce the Contract may be varied and/or extinguished by agreement between the parties to the Contract without the consent of any such third party.
- The Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.