Terms & conditions
PROVISION AND SALE OF SERVICES
1 DEFINITIONS
1.1 In this document the following words and expressions shall have the following meanings:-
"Buyer" means the company, firm or person who purchases the Services from the Seller;
"Contract" means any contract between the Seller and the Buyer for the provision of Services incorporating these Terms and Conditions;
"Goods" means any goods in relation to which the Seller is providing Services;
"Price" means the price of Services to be paid by the Buyer as determined in accordance with Clause 4;
"Seller" means Smart Alloys and
"Services" means any services agreed in the Contract to be supplied to the Buyer by the Seller; and
"Terms and Conditions" means the terms and conditions contained in this document.
1.2 In these Terms and Conditions unless otherwise specified or the context otherwise requires:-
(a) words in the singular include the plural and vice versa;
(b) words in one gender include all other genders;
(c) references to Clauses are to the relevant clauses of these Terms and Conditions;
(d) references to these Terms and Conditions or any other document are references to these Terms and Conditions or that document as modified, amended, varied, supplemented, assigned, novated or replaced (in each case, other than in breach of these Terms and Conditions) at any time;
(e) reference to a statute or statutory provision is a reference to it as it is in force from time to time and includes:
(f) any statute, statutory provision or subordinate legislation which it amends or re-enacts; and
(g) any subordinate legislation made from time to time under that statute or statutory provision;
(h) reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept, state of affairs or thing is deemed, in respect of any jurisdiction other than England, to include that which most approximates in that jurisdiction to the English legal term;
(i) references to a "person" includes a natural person, corporate or incorporated body (whether or not having separate legal personality);
(j) any phrase introduced by the words "including", "include", "in particular" or any similar expression is to be construed as illustrative only and is not to be construed as limiting the generality of any preceding words; and
(k) the words "other" and "otherwise" are not to be construed ejusdem generis with any foregoing words where a wider construction is possible.
(l) a "month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that, if there is no numerically corresponding day in the month in which that period ends, that period ends on the last day in that calendar month;
1.3 The headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of these Terms and Conditions.
2 ORDERING GOODS
2.1 The Buyer's Purchase Order shall specify in detail the nature of the [Goods/Services] required with reference to [Seller's brochure / price list] at the time the Buyer's Purchase Order is made.
2.2 Each order Services accepted by the Seller shall be deemed to be an individual legally binding Contract.
2.3 The Buyer confirms that in relation to any Contract entered into upon these Terms and Conditions, that he does not "deal as a consumer" for the purposes of section 12 of the Unfair Contract Terms Act 1977. If the Buyer believes he or she may be a consumer, they should contact the Seller at the address set out above, and different terms and conditions will be supplied by the Seller.
3 SPECIFICATION OF SERVICES
All Services shall be required only to conform to the specification in the Contract or as otherwise expressly agreed in writing. For the avoidance of doubt no description, specification or illustration contained in any Seller product pamphlet or other sales or marketing literature and no representation written or oral, correspondence or statement shall form part of the Contract.
4 PRICE
4.1 The Price shall be the price agreed in the Contract subject to the following terms and conditions:-
4.1.1 should there be any increase in the Price and costs of raw materials, labour and overhead expenses that were not taken account of by the Seller in submitting the Price set out in any estimate or any order acknowledgement form signed by the Seller then the Seller reserves the right to increase the Price upon giving written notice of such increase to the Buyer at any time before completion of the Contract;
4.1.2 if the words "Fixed Price" appear in relation to the Price quoted in any estimate signed by the Seller the Price shall remain fixed only for the supply of the Services which form part of the Contract;
4.1.3 if the Seller and the Buyer agree any variation to the Contract whereby additional work is to be undertaken by the Seller then the Seller shall reserve the right (whether or not the estimate or order acknowledgement form contain the words "Fixed Price") to reflect any increase in Price and cost of raw material, labour and overhead expenses that may have taken place since the commencement of the original Contract works in the Price of such additional work;
4.1.4 any variation by the Buyer in the design, quantification or specification of the work pursuant to the Contract following any instruction by the Buyer shall allow the Seller to increase the Price to reflect any additional costs the Seller may incur as a result thereof; and
4.1.5 the Price and all prices quoted are strictly net. In addition to the Price the Buyer shall pay (i) delivery and freight charges, (ii) insurance, (iii) Value Added Tax and/or any other sales taxes where applicable at the appropriate rate prevailing at the time payment is due and (iv) the cost to the Seller of carrying out any special test, examination or inspection requested by the Buyer.
5 PAYMENT
5.1 Payment of the Price shall be made by the Buyer, in cleared funds, to the Seller within (30) thirty days from the date of invoice. Time for payment of the Price shall be of the essence of the Contract. The Seller shall be entitled to invoice the Buyer at the time of completion of the Services, or at any time thereafter.
5.2 The Seller shall have the right to charge interest which shall accrue on a day to day basis on all monies which at any time may be overdue for payment pursuant to the terms of the Contract at the rate of 4% per month above the base lending rate of the [Natwest Bank from time to time.
6 DELIVERY
6.1 Unless otherwise agreed, delivery of Goods and performance of the Services shall take place at the address specified in the Buyer's Purchase Order and the Buyer shall be deemed to have accepted the Goods or Services upon their delivery or performance respectively.
6.2 Any date or time given by the Seller for delivery of Goods or performance of Services shall be an estimate only. Time for performance shall not be of the essence of the Contract.
6.3 If for any reason the Buyer fails to accept delivery of any of the Goods when performance of the Services are complete and they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
6.4 The Seller shall not be liable for any non-delivery of Goods (even if caused by negligence) unless the Buyer gives written notice to the Seller of the non-delivery within seven (7) days of the date when the Goods would in the ordinary course of events have been received.
6.5 Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Price against any invoice raised for such Goods.
7 RISK
7.1 All risk in the Goods shall remain with the Buyer throughout the provision of the Services.
7.2 The Buyer will bear the risk of loss or damage to the Goods during any transportation to and from the premises at which the Services are to be performed and the Buyer shall keep the Goods insured against this risk. The Buyer shall, if required by the Seller, provide written evidence of such insurance.
8 TITLE TO GOODS
8.1 Unless otherwise agreed in writing between the parties the property and title in the Goods shall not pass to the Buyer but shall remain vested in the Seller until the whole of the Price has been paid.
8.2 Until the whole of the Price and all other sums due in respect thereof pursuant to any Contract between the Seller and the Buyer shall have been received by the Seller:
9 SELLER'S OBLIGATIONS
9.1 The obligations of the Seller contained in Clause 9.1 shall be conditional upon:-
(a) notice being given of the defect within five (5) days of the defect becoming apparent;
(b) such notice being served within ninety (90) days of delivery;
(c) the defect not having arisen because the Buyer failed to follow the Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or in accordance with good trade practice; and
(d) such defect being found to have arisen from the Seller's faulty design, workmanship or materials.
9.2 Any Goods to be repaired or replaced in accordance with Clause 9.1 shall be delivered to the Seller at the Buyer's expense.
9.3 The Seller shall use reasonable skill and care in the provision of the Services but does not guarantee any particular outcome or results in the provision of the Services.
9.4 Where the Goods have been manufactured and supplied to the Seller by a third party the Seller shall (where possible) pass on to the Buyer the benefit of any warranty in respect of the Goods granted to the Seller by such third party.
9.5 Subject to this Clause 9 and to Clause 10 all other conditions warranties or other stipulations concerning the Goods or Services whether express or implied by common law or under statute are excluded to the fullest extent permitted by law, and in particular, but without limiting the foregoing generality, the Seller grants no warranties regarding fitness for purpose, use, quality or nature of the Goods or Services whether express or implied by statute or common law.
10 FORCE MAJEURE
10.1 If performance of the Contract by the Seller shall be delayed by any circumstances or conditions beyond the control of the Seller including (but without prejudice to the generality of the foregoing) any war, intellectual dispute, strike, lockout, riot, malicious damage, fire, storm, flood, Act of God, accident, failure of production equipment, any statute, rule, byelaw, order, regulation or requisition made or issued by any government department, local or other duly constituted authority, then the Seller shall have the right to suspend further performance of the Contract until such time as the cause of delay shall no longer be present.
10.2 If performance of the Contract by the Seller shall be delayed by any such circumstances or conditions beyond the control of the Seller for a period of three (3) months, then the Seller shall have the right to be discharged from further performance of and liability under the Contract.
11 NOTICES
11.1 Any notice to be given under, or in connection with the matters contemplated by, these Terms and Conditions shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally or sending it by facsimile or pre-paid recorded delivery or registered post (or registered airmail in the case of an address for service outside the United Kingdom) to the registered office or principal place of business of the other party (marked for the attention of Shane Whiten, (or as otherwise notified by that party hereunder). Any such notice shall be deemed to have been received:-
(a) if delivered personally, at the time of delivery;
(b) in the case of pre-paid recorded delivery or registered post, forty-eight (48) hours from the date of posting;
(c) in the case of registered airmail, five (5) days from the date of posting; and
(d) in the case of fax, at the time of transmission[.][; and]
(e) [in the case of electronic mail, forty-eight (48) hours after the time of sending.]
If deemed receipt occurs before 9am on a business day the notice shall be deemed to have been received at 9am on that day and if deemed receipt occurs after 5pm on a business day, or on a day which is not a business day, the notice shall be deemed to have been received at 9am on the next business day. For the purpose of this Clause 16, "business day" means any day which is not a Saturday, a Sunday] or a public holiday in the place at or to which the notice is left or sent.
12 WAIVER
No failure or delay by any party in exercising any right, power or privilege under any Contract shall operate as a waiver nor shall any single or partial exercise preclude any further exercise of any right, power or privilege under any Contract or otherwise.
13 SEVERABILITY
If any provision of these Terms and Conditions shall be found by any court of competent jurisdiction to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall not affect the other part of that provision or the other provisions of these Terms and Conditions which shall remain in full force and effect.
14 GOVERNING LAW
The interpretation of these Terms and Conditions and any Contract formed under these Terms and Conditions shall be governed by and construed in accordance with the law of England and Wales and the parties hereto submit to the non-exclusive jurisdiction of the English courts.