Terms and Conditions
1. Formation of contracts and Application of terms and conditions
(a)All contracts of sale made by ProCut CNC Machining Ltd. Limited ("the Seller") for the sale of Goods to customers within the United Kingdom or the Republic of Ireland shall be deemed to incorporate these terms and conditions (" the Conditions"). Any variation to these Conditions and any representations about the goods and services supplied under the Conditions shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller that is not set out in this contract.
(b)Each order or acceptance of a quotation issued by the Buyer to the Seller shall be deemed to be an offer by the Buyer to buy those goods of the Seller that are identified in the order or the quotation ("the Goods") subject to these Conditions.
(b)The Buyer shall ensure that the description of the Goods contained in its order and any applicable specifications are complete and accurate.
(c)These Conditions apply to the exclusion of all other terms and conditions, including any conditions that the Buyer purports to apply, but they may be extended by terms and conditions issued by the Seller.
2. Interpretation of contracts
(a)The construction, validity and performance of all Contracts shall be governed by English law and any claim or dispute arising from them shall, without prejudice to the Seller’s other rights, be subject to the jurisdiction of and be determined by the English Courts.
(b)The complete or partial invalidity or unenforceability of any provision herein shall in no way affect the validity or enforceability of such provision for any other purpose or the remaining provisions. Any such provision shall be deemed to be severed for that purpose subject to such consequential modification as may be necessary for the purpose of such severance.
(c)The headings used herein are for convenience only and shall not affect construction; and “all Liabilities” means “all liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis) and value added tax (VAT), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with”.
(d)A reference to the Sale of Goods Act 1979 or the Unfair Contract Terms Act 1977 is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
(e)Words in the singular include the plural and in the plural include the singular.
Any orders accepted by the Seller are accepted on the basis that the price applying shall be that set out in the Seller’s quotation for its period of validity. Unless otherwise stated, all prices are ex works and exclusive of VAT.
(a) Where credit is allowed by the Seller then payment shall be made on a monthly basis to the Seller’s designated bank account in the UK in sterling provided that no other basis of payment is set out in a quotation or otherwise.
(b) Time is of the essence in relation to payment.
The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
(c)No payment shall be deemed to have been received until the Seller has received cleared funds.
(d) All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
(e)If the Buyer fails to pay the Seller any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Seller on such sum from the due date for payment at the annual rate of Four per cent (4%) above the base lending rate from time to time of Lloyds TSB Bank plc. accruing on a daily basis until payment is made, whether before or after any judgment. The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
(f) Where credit is allowed by the Seller and the Buyer exceeds the payment terms laid out in Section 4(a) the Seller reserves the right to withhold Goods for which the Buyer is bailee, until the whole account is settled in full, up to and including current balances as per conditions of 4 (c).
(g)All invoices are due for payment on the last working day of the month following receipt of invoice provided that no other basis of payment is set out in a quotation or otherwise. Any invoice outstanding beyond this period will be referred to a debt collection agency and will be subject to a surcharge of 10% plus VAT to cover the collection costs incurred. This surcharge together with all other charges and legal fees incurred will be the responsibility of the customer and will be legally enforceable.
5. Dispatch, deliveries and receipts.
(a)Any stated delivery date is an estimate and time for delivery shall not be made of the essence by notice. The Seller will use reasonable endeavours to meet any stated delivery date. If no date for delivery is specified, delivery shall be within a reasonable time.
(b)Subject to the other provisions of these Conditions the Seller shall not be liable for any 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 similar loss), costs damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
(c)Except insofar as the Contract expressly provides otherwise, the Seller may select the method, and charge the Buyer for the cost, of carriage. In cases where Goods are to be delivered at the Buyer’s request, the Seller will charge the Buyer the full cost of carriage. When any special packaging or carriage is required, then the Seller will charge the Buyer the full cost.
(d)In contracting for carriage and/or insurance of the Goods in transit, the Seller shall be deemed to act solely as agent of the Buyer and Section 32(2) and (3) of the Sale of Goods Act 1979 shall not apply.
(e)The Buyer must (a) examine the Goods on delivery, (b) notify the Seller and any carrier in writing of any shortage or damage within four days after the date of delivery and of non-delivery within 14 days after the Goods would in the ordinary course of events have been received, otherwise Goods shall be deemed accepted by the Buyer.
(f)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 Contract rate against any invoice raised for such Goods.
(g)The Buyer shall be responsible for all costs incurred by the Seller where the Buyer fails to accept delivery of Goods and the Seller shall have a lien over such Goods.
(h)Any stated dimension or weight is an estimate only.
(i)The Seller may deliver the Goods by installments, each installment to be deemed to be a separate contract. Without limiting the other provisions herein, no failure or defect in delivery in respect of any contract or installment shall enable the Buyer to repudiate or cancel any other contract or installment.
(j)If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorizations for the Goods when they are tendered by the Seller for delivery then:
(i) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller’s negligence);
(ii) the Goods shall be deemed to have been delivered; and
(iii) 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).
(k)The Buyer will reimburse the Seller for any loss of time if materials supplied by the Buyer fail to arrive at the premises of the Seller upon the pre-designated day as advised by the Buyer at the point of order. Calculated using an hourly rate based upon the average overhead of the 12 preceding months divided by 168 hours (hours in a 21 day working month), multiplied by the number of machines assigned to the Sellers’ contract to a maximum of 5 working days.
(a)The property in the Goods supplied shall not pass to the Buyer until receipt by the Seller of payment in full. Until such payment the Buyer shall be bailee of the Goods. The Buyer shall be bailee of the Goods free issued by the Seller until all outstanding payments are received by the Seller pursuant to section 4(e).
7. Specifications, descriptions, drawings and designs
(a)Specifications, descriptions, drawings and samples of Goods are approximate only being intended to serve merely as a guide. The Seller shall not be liable for their accuracy and they shall not form part of the Contract. The Seller may without limitation alter the Goods to introduce improvements, and no contract shall be a contract by description and/or sample.
(b)All drawings, designs and quotations for which Goods are not subsequently ordered by the Buyer shall remain the property of the Seller and be treated as confidential by the Buyer and not used in any way. The Seller shall have no liability in relation to any such drawings, designs or other information.
(c)The Seller accepts no liability for Goods manufactured to a design supplied by the Buyer.
(d)If the Seller accepts an offer from the Buyer as laid out in section 1, the Seller does not imply expert or specialist knowledge of the same.
(e) The Buyer will indemnify the Seller against any breach of copyright or patent the design may infringe.
a) The Seller warrants that if the Buyer returns Goods manufactured by the Seller and on the Seller’s examination such Goods prove defective as to material or workmanship or as to compliance with any specifications expressly agreed in writing within one month from date of delivery the Seller shall make good the defect without charge by repair or (at the Seller’s discretion) by supplying replacement components or complete units as the Seller in its discretion considers appropriate.
(b)With regard to Goods supplied, but not manufactured by the Seller and to the extent that it is entitled to do so, the Seller shall assign or at its discretion use its reasonable endeavours otherwise to make available, to the Buyer, at the Buyer’s expense and on the basis of an indemnity (secured if appropriate) against all Liabilities that may be incurred by the Seller in relation thereto, the benefit of any obligations and Liabilities in respect of such defect which the Seller may be owed by the manufacturer and/or supplier of the Goods or any part or component thereof.
- 9. The above warranty is applicable provided that the warranty shall not apply in circumstances caused wholly or partly by deterioration necessarily incidental to transit or, while at the Buyer’s risk by willful default, accident, improper storage or use, excessive wear or failure caused by faulty installation or by any abnormal conditions.
10. Limitation and exclusion of liabilities
(a)The Seller’s obligations and liabilities to the Buyer in respect of the Goods shall be limited to those set out expressly herein and those implied by section 12 of the Sale of Goods Act 1979 and, where the Contract is not an international supply contract within section 26(3) of the Unfair Contract Terms Act 1977. Notwithstanding any other terms of these Conditions the Seller does not limit or exclude its liability for fraud or for death or personal injury resulting from its negligence (as defined in that Act).The Buyer acknowledges that all limitations and exclusions of liability set out in these Conditions are reasonable.
(b)Subject to and without limiting (a) above, (i) the Seller shall not be liable to the Buyer for any loss, injury or damage of any nature whatsoever whether direct or consequential arising out of or in connection with any Goods; (ii) and the Buyer shall not rely upon any representation concerning any Goods unless the same shall have been made by the Seller in writing.
(c)Seller shall have no responsibility for any loss or claim in the event that the information in any quotation or advice is applied in connection with products other than the Goods.
11. Force majeure
The Seller shall have the right to cancel or delay deliveries or to reduce the quantity delivered
without liability to the extent that the Seller is prevented from or delayed or hindered in manufacturing the Goods or supplying them (by normal routes or means of delivery) through any circumstances which are beyond the Seller’s reasonable control or which the Seller could not reasonably have been expected to control or prevent.
12. Events of default, termination, repossession, suspension
(a)If the Buyer fails to pay the price when the same is due or otherwise breaches any contract with the Seller and the breach, if remediable and previously notified to the Buyer thereof, is not remedied within seven days; or
(b)If the Buyer is or otherwise becomes insolvent (as defined in the Insolvency Act 1986) or suspends payment or threatens to do so; or
(c)If the Buyer or any of its assets become subject to any form of winding up, administration, receivership, insolvency proceedings, arrangements with creditors generally, enforcement of security or legal process or repossession; or
(d)If outside England and Wales, anything corresponding to any of the above occurs. Then the Buyer shall notify the Seller forthwith and shall be deemed to have repudiated each Contract with the Seller, who may (at its discretion and without prejudice to its other rights hereunder or otherwise) by and/or following written notice to the Buyer do any one or (to the extent not inconsistent with one another) more of the following:‑
(i)terminate, cancel and/or rescind the Contract and any other contracts or suspend any deliveries to be made under any contract with the Buyer;
(ii) revoke any express or implied authority to sell, use or consume any Goods the property in which has not passed to the Buyer (“Relevant Goods”);
(iii)require the Buyer to deliver to the Seller any Relevant Goods; and the Buyer shall do so, failing which the Seller may repossess them, enter the premises where they are or are thought to be and sever them there from, without liability for any resulting damage and the Buyer shall indemnify the Seller against all Liabilities in relation thereto.
(e)If the Buyer fails to pay the price when the same is due as laid out in Section 4(a), the Seller reserves the right to withhold services and/or goods until the account is settled in full including any current balances, irrespective of whomsoever is acting as bailee for material and/or goods.
(a)The Seller’s rights under these Conditions are in addition to any other rights which the Seller may have under the general law or otherwise.
(b)If the Buyer comprises two or more persons, their obligations are joint and several.
(c)Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract by the Seller shall not be construed as a waiver of any of its rights under the Contract.
(d)Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any sub sequential breach or default and shall no way affect the other terms of the Contract.
(e)No term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14. Industrial property
Seller shall not be liable for any infringement of any industrial or intellectual property rights caused by the Goods or their use or sale by the Buyer. The Buyer shall forthwith notify the Seller of any allegation of any such infringement. The Seller may at its own expense conduct any negotiations or proceedings arising from any such allegation; and the Buyer shall assist therein.
(a)Any notice under these Conditions or any relevant contract to the Seller shall be in writing and given by first class post or hand delivered to ProCut CNC Machining Limited Reg. Off. 162-164, High Street, Rayleigh, Essex SS6 7BS for the attention of the Company Secretary or for the attention of such person as the Seller maynotify to the Buyer.
(b)Any notice under these Conditions or any relevant contract to the Buyer shall be in writing and given by first class post or hand delivered to any address from which the Seller has received communications from the Buyer in connection with these Conditions.
(c)Notices shall be deemed to have been received:
(i)if sent by first class post, two days (excluding Saturdays and Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(ii)if delivered by hand, on the day of delivery.