Terms and Conditions
Total Carbide Limited
Standard Terms and Conditions of Trading
1 DEFINITIONS "the Company" means Total Carbide Limited (English company number 02427937); "in writing" includes facsimile transmission, but not electronic mail.
2.1 These standard terms and conditions apply to all sales of goods by the Company to any purchaser ('the Buyer') and shall apply in place of and prevail over any terms, or conditions contained or referred to in the Buyer's order or in correspondence or elsewhere or implied by any previous course of dealing between the parties unless specifically agreed to in writing by a director of the Company.
2.2 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer or commences manufacture of the Goods (as the case may be).
3 PRICES AND TERMS OF PAYMENT
3.1 Subject to Clause 3.2 below, the price payable for the goods shall be as agreed between the Company and the Buyer at the time of order and, unless specifically agreed in writing, does not include any charge for handling or delivering goods where delivery does not take place at the Company's premises. Unless otherwise stated, the prices quoted are exclusive of VAT or import or export duties or any applicable similar or substitute tax or duty.
3.2 In the case of special orders by the Buyer, the Company shall make a quotation which is only intended to be valid for a thirty day or any other stated period and shall not constitute an offer and may be withdrawn or revised at any time prior to the Company's acceptance of such special order from the Buyer. For the purposes of Clause 3.1 and of this Clause 3.2 acceptance shall be effective only if made on the Company's printed form duly signed by an authorised representative of the Company.
3.3 Time is to be of the essence in relation to the Buyer's payment obligations pursuant to this Clause 3 and to Clause 4 below.
3.4 All invoices shall be paid in full in cleared funds within 30 days of the date of the invoice, unless otherwise agreed in writing and shall be paid in the currency in which they are expressed.
3.5 Interest shall be payable on overdue accounts at the rate of 3% per annum above the base rate from time to time of the central bank of or which sets the interest rates for the country from which the invoice was raised. It shall accrue on a daily basis from the due date for payment until receipt by the Company of the full amount, whether or not after judgment. The Buyer shall pay the interest together with the overdue amount.
3.6 Where the parties have agreed that payment shall be made by instalments, then in the event of failure to pay any instalment on the due date the full amount of the monies outstanding under the contract shall be payable forthwith.
3.7 The Company reserves the right to demand security for payment and to vary its credit terms at any time before delivery.
3.8 If for any reason the Company receives an amount other than in the currency of invoice or if the amount of the currency of invoice has to be converted into another currency for the purpose of making or filing a claim or proof or obtaining an order or judgment or similar award in any court or other tribunal or enforcing any order or judgment or similar award given or made in relation thereto, then if the amount received by the Company is less than the amount due in the currency of invoice the Buyer shall pay on demand an amount in the currency of invoice equal to the deficit.
3.9 In the case of export sales, unless otherwise agreed the price of the goods shall be secured by an irrevocable letter of credit satisfactory to the Company established by the Buyer immediately upon receipt of the Company's acknowledgement of order and confirmed by a bank acceptable to the Company. The letter of credit shall be for the contract price inclusive of any tax or duty payable by the Buyer and shall be valid for at least 3 months or such longer period as shall have been estimated by the Company for delivery. The Company shall be entitled to payment on presentation to such bank of the documents specified by the Company. All bank charges and other expenses in connection with letters of credit should be payable by the Buyer.
3.10 The Company reserves the right, by giving notice in writing to the Buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions).
4.1 Delivery dates mentioned in any quotation, order or other document are approximate only and not of any contractual effect and the Company shall not be under liability to the Buyer in respect of any failure to deliver on any particular date or dates.
4.2 The Company will arrange for delivery of the goods at the Buyer's expense and risk to the address notified to it by the Buyer. The Company may invoice the Buyer separately in respect of such delivery costs, and Clauses 3.4 and 3.5 above shall apply to the delivery charges. If the Buyer does not so notify the Company, delivery shall take place ex-works at the Company's premises notified to the Buyer for this purpose and the Buyer shall make its own arrangements for collection of the goods at its own expense and risk within five days of the Company notifying the Buyer that the goods are ready for collection.
4.3 The Company reserves the right to make delivery by instalments, in which case each instalment shall constitute a separate contract and a separate invoice will be tendered in respect thereof. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4.4 If the Buyer refuses or fails to take delivery of goods tendered in accordance with the contract or fails to take any action necessary on its part for delivery of the goods (including failing to supply any information or assistance necessary for the transportation or delivery of the goods within or through any territory) the Company shall be entitled to terminate the contract with immediate effect, to dispose of the goods as the Company may determine, and to recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure.
4.5 If the Company gives notice to the Buyer of its readiness to deliver, and the Buyer requests that delivery be suspended, delayed or made by instalments then the price of the goods (if not already due and payable) shall become due and payable on the date of such notice, and the Buyer shall pay the cost of storing the goods. Risk of damage to or loss of the goods shall pass on the date of such notice, but the Company reserves the right at its total discretion but at the Buyer's expense, to arrange to insure the goods for at least the purchase price payable to the Company.
Subject to Clause 4 above, risk of damage to or loss of the goods shall pass when the Company notifies the Buyer the goods are available for collection and the Buyer agrees immediately to insure the goods for at least the purchase price payable to the Company therefore.
The Company shall be deemed to have fulfilled its contractual obligations in respect of any delivery though the quantity may be up to 10% more or less than the quantity specified in the contract and in such event the Buyer shall pay for the actual quantity delivered at the pro rata contract rate.
The Buyer is under a duty to inspect the goods on delivery or on collection by the Buyer or its agent as appropriate wherever it is reasonably possible to do so. Where goods are not so inspected, the Buyer must write on the delivery/collection note "Goods not examined".
8.1 Ownership of the goods shall not pass to the Buyer until the Company has received in full (in cleared funds) all sums due to it in respect of the goods and all other sums which are or which become due to the Company from the Buyer on any account.
8.2 Until ownership of the goods has passed to the Buyer, the Buyer shall: hold the goods on a fiduciary basis as the Company's bailee; store the goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property; not destroy, deface or obscure any identifying mark or packaging on or relating to the goods; and maintain the goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
8.3 The Buyer may resell the goods before ownership has passed to it solely on the following conditions: any sale shall be effected in the ordinary course of the Buyer's business at full market value and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Company on behalf of the Company and the Buyer shall account to the Company accordingly; and any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
8.4 The Company shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from the Company.
8.5 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
8.6 Where the Company is unable to determine whether any goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
9 THIRD PARTY RIGHTS/PRODUCT LIABILITY
9.1 The Buyer shall indemnify the Company against any and all liabilities claims and costs incurred by or made against the Company as a direct or indirect result of the carrying out of any work required to be done on or to the goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party or any liability for personal injury, death or damage to property.
9.2 The Company shall have no liability to the Buyer in the event of goods infringing or being alleged to infringe the rights of any third party. In the event that the goods are or may be the subject of third party rights the Company shall be obliged to transfer to the Buyer only such title as the Company may have.
9.3 The Buyer shall notify the Company forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. The Company shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance in connection therewith as the Company may request.
10 SPECIFICATIONS AND INFORMATION
10.1 Unless expressly agreed in writing by the Company, all samples, drawings, designs, specifications and particulars of weights and dimensions submitted by the Company are approximate only and the Company shall have no liability in respect of any deviation therefrom. They shall not form part of the contract and this is not a sale by sample. The Company accepts no responsibility for any breach of third party intellectual property rights, errors, omissions or other defects in any drawings, designs or specifications prepared by the Buyer or by any third party and the Company shall be indemnified by the Buyer against any and all liabilities and expenses incurred by the Company arising therefrom.
10.2 All drawings, designs, specifications and information submitted by the Company are the Company's property and confidential and shall not be disclosed to any third party without the Company's written consent.
11.1 The Company shall not be liable to the Buyer:
11.1.1 for damage to or loss of the goods or any part thereof in transit (whether the goods are carried by the Company's own transport or by a carrier on behalf of the Company), short delivery (subject as provided in Clause 8 above) or defects discovered on inspection or which should have been reasonably apparent on inspection unless the Buyer notifies the Company of any such claim within 24 hours of delivery of the goods (except in relation to defects which would not be reasonably apparent on inspection, in which case the Buyer shall so notify the Company within 1 month of delivery) and if following such notification the Company agrees to accept liability under this Clause 11.1.1, its only obligation shall be to replace or repair any goods so damaged or lost as appropriate and/or to refund the cost of such goods to the Buyer;
11.1.2 for defects in the goods caused by fair wear and tear, abnormal conditions of storage or use or any act, neglect or default of the Buyer or of any third party.
11.2 If the Buyer requests goods to be supplied or manufactured in accordance with any industry, standard or quality requirement then the Company will only do so if it has agreed in writing to do so in connection with the particular order.
11.3 In any event, the Company's aggregate liability to the Buyer whether for negligence, breach of contract misrepresentation or otherwise shall in no circumstances exceed £25,000 (or its equivalent in the currency of invoice) in respect of any occurrence or series of occurrences.
11.4 Subject to the foregoing, all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the goods are hereby excluded and the Company shall be under no liability to the Buyer for any loss, damage or injury direct, indirect or consequential resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Company, its employees or agents SAVE THAT the Company shall accept liability for death or personal injury caused by the negligence of the Company.
11.5 The Company's prices are determined on the basis of the limits of liability set out in this Clause. The Buyer may by written notice to the Company request the Company to agree a higher limit of liability provided insurance cover can be obtained therefor. The Company shall effect insurance up to such limit and the Buyer shall pay on demand the amount of any and all premiums. The Buyer shall disclose such information as the insurer shall require. In no case shall the Buyer be entitled to recover from the Company more than the amount received from the insurers.
12.1 The Buyer shall meet the cost of any special packaging requested by the Buyer or any packaging rendered necessary by delivery by any means other than the Company's normal means of delivery.
12.2 The Company shall be entitled to invoice the Buyer for the cost of all pallets and other returnable packaging materials unless the same are returned to the Company in good condition carriage paid within 30 days of the date of delivery.
13 FORCE MAJEURE
13.1 The Company shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of goods by the Company being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Company's reasonable control including without limitation act of God, act of terrorism, war, riot, strike, lockout, customs or border delays or disputes, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, storm, epidemics or similar events or natural disasters, difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of the goods or of raw materials therefor by the Company's normal source of supply or the manufacture of the goods by the Company's normal means or the delivery of the goods by the Company's normal route or means.
13.2 If the Company is prevented by an event of force majeure from fulfilling its contractual obligations, it shall notify the Buyer of the fact in writing within 10 days of the due date for delivery. If the event of force majeure is continuing 3 months after the date of such notice, either party may give written notice to the other terminating the contract forthwith, provided that the event of force majeure subsists at the time the notice is received by such other party.
13.3 The Buyer's only entitlement in such circumstances shall be to a refund in respect of any payment which it has already made on account of the price, subject to the deduction of any sums due to the Company.
13.4 If due to such circumstances or events the Company has insufficient stocks to meet all its commitments the Company may apportion available stocks between its customers at its sole discretion.
14 CANCELLATION OF ORDERS
Contracts may be cancelled only with the Company's prior written consent and subject to the Buyer indemnifying the Company in full for any losses incurred by the Company in respect of such cancellation.
If the Buyer:
15.1 (being an individual) enters into a deed of arrangement or commits an act of bankruptcy or compounds with its creditors or if a receiving order is made against him or any similar proceedings, arrangements or act are commenced , made or carried out in any jurisdiction; or
15.2 if (being a company) an order is made or a resolution is passed for the winding up of the Buyer (otherwise than for the purposes of a bona fide amalgamation or reconstruction) or the Buyer enters into a voluntary arrangement or compounds with its creditors or if a receiver or administrator is appointed over all or any of the Buyer's assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver, manager or administrator or which entitle the court to make a winding up order or any similar proceedings, circumstances, arrangements or appointments are commenced or made or arise in any jurisdiction if the Buyer takes or suffers any similar or analogous action in consequence of debt; or
15.3 commits any material breach of this or any other contract between the Company and the Buyer which is unremediable (or, being remediable, has not been remedied by the Buyer within 7 days of receiving notice from the Company requiring remedy), then the Company may treat the contract as being at an end, but without prejudice to any liability of the Buyer to pay all sums due to the Company at the time of termination.
16 THIRD PARTY ENFORCEMENT
A person who is not a party to any contract for the purchase of goods has, unless specifically envisaged hereby or it is not permissible to exclude such rights, no right to enforce any provision of any order or these conditions.
No waiver by the Company of any breach hereof shall be construed as a waiver of any subsequent breach of the same or any other provision.
If any provision hereof is held by a court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions hereof (including the remainder of the provision in question) shall not be affected.
19 FURTHER CONDITIONS
Any additional conditions issued by the Company which accompany or are attached to these terms of business are deemed incorporated herein and in the event of conflict the provisions of such additional conditions shall prevail.
20 GOVERNING LAW/JURISDICTION
The parties to the contract irrevocably agree, for the sole benefit of the Company that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the contract or its subject matter or formation (including non-contractual claims). Nothing in this condition shall limit the right of the Company to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.