BANTAM MATERIALS UK LIMITED TERMS & CONDITIONS
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 13
In these terms and conditions the terms and expressions set out in Schedule 1 shall have the meaning set out therein and the rules of interpretation in Schedule 1 shall apply.
APPLICATION OF TERMS
- Each order for Products from the Customer to the Company shall be deemed to be an offer by the Customer to purchase the Products subject to these terms and conditions (“Terms”). Subject to any variation under condition 2.2 the Contract will be on these Terms to the exclusion of all other terms and conditions, including any terms or conditions which the Customer seeks to impose or incorporate under any purchase order, confirmation of order, specification or other document or which are implied by trade, custom, practice or course of dealing.
- These Terms apply to all the Company’s sales and any variation to these Terms and any representations, warranties or other statements about the Products shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Company.
- Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Products or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force unless they are agreed to be included in or attached to the Quotation.
- Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
- No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company when a contract for the provision of Products under these Terms will come into effect.
- The Company will send the Customer a Quotation on the basis of the Customer Information.
- Any Quotation given is valid only for the period stated in the Quotation or if no period is stated a period of 14 days from its date, provided that the Company has not previously withdrawn it.
- The Customer will supply to the Company the Customer Information and any other information required under the Contract.
- The Customer acknowledges that the Customer and/or the Customer’s Representative is solely responsible for providing the Customer Information.
- The Customer warrants that the Customer Information and any further information supplied by the Customer and/or the Customer’s Representative to the Company under the Contract is complete and accurate in all respects.
- The Customer acknowledges that the Company shall rely on the Customer Information in determining and selecting the appropriate Products and preparing the Quotation.
- The Company shall be entitled to rely upon the specification and any advice given by the Customer (in relation to the suitability of the Products for meeting the Customer’s requirements) such that to the extent that the Products comply with such specification and or such advice then the Company shall be deemed to have supplied in accordance with these Terms, without limitation, notwithstanding the Customer Information.
- If the Customer wishes to proceed with the provision of the Products by the Company in accordance with the Quotation the Customer must return its purchase order to the Company prior to the commencement of work by the Company, as confirmation that the Quotation accurately sets out the Customer’s requirements.
- Without prejudice to condition 3.1, the Customer shall provide to the Company without charge or delay on request from the Company all reasonable assistance as may be so requested by the Company and all additional information and data reasonably requested by the Company to enable the Company to provide the Products.
- Any Customer Information supplied by the Customer shall include: details of whether any technical data supplied by the Customer requires an export licence or other governmental approval; any regulatory requirements regarding the supply of Products to the Customer; and all other relevant details which relate to the Customer’s requirements.
- Any information not supplied to the Company by the Customer and/or the Customer’s Representative is deemed to be unknown to the Company
- No changes to the Customer Information, the Quotation or the Products will form part of the Contract unless agreed in writing by the parties. The Customer understands that as a condition to agreeing a change the Company may alter these Terms for the provision of the Product (including increasing the Price).
- If the Customer wishes to amend the Customer Information or if the Customer Information is subsequently found to be inaccurate and/or not complete for any reason other than the Company’s negligence the Company will be entitled to alter these Terms for the provision of the Products (including increasing the Price).
- If the Company alters any of these Terms the Company shall notify the Customer in writing of any such alteration and the reason for such alteration. The Customer must accept any such variation to the terms in writing within 7 days of notification by the Company of such alteration (such acceptance not to be unreasonably withheld) or the Company shall be entitled to terminate the Contract by giving written notice to the Customer.
- No order which has been accepted by the Company may be cancelled by the Customer, except with the agreement in writing of the Company and provided that the Customer indemnifies the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
SUPPLY OF PRODUCTS
- The Products are described in the Quotation.
- To the extent that the Products are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company by a third party arising out of or in connection with the Company’s use of the specification supplied by the Customer. This condition 4.2 shall survive termination of the Contract.
- The Company has the right (but not the obligation) to amend the specification of the Products if required by any applicable statutory or regulatory requirements.
- Where the Company purchases goods for the Customer from a third party it is the Customer’s responsibility to ensure that such goods are suitable for its requirements and the Company shall have no responsibility or liability for such goods (whether for their suitability, performance or otherwise).
- The price for the Products and any Operating Manuals shall be the price set out in the Quotation or as otherwise notified by the Company to the Customer (“Price”).
- Unless otherwise specified the Price shall be exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other sales tax, tariffs, charges and duties or other local, national government or European Union levies of which amounts the Customer will pay in addition when it is due to pay for the Products.
- If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to the Company, the Customer shall increase the sum it pays to the Company by the amount necessary to leave the Company with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
- The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Product as has not been delivered to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, increase in the Company’s supplier’s costs, increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Product which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
- Payment in full of all amounts as are invoiced to the Customer by the Company shall be made by the Customer in pounds sterling or currency identified in purchase order on or before the last day of the month following the end of the month in which the invoice is dated. Any amounts which are disputed in good faith by the Customer must be notified to the Company within 15 days of the date of the Company’s invoice which is the subject of the dispute.
- The time for payment shall be of the essence and no payment shall be deemed to have been made until the Company has received payment in cleared funds.
- If the Customer fails to pay the Company any sum due pursuant to the Contract then without limiting the Company’s remedies under clause 11 Customer shall pay interest to the Company on such sum from the due date for payment at the annual rate of 4% (or as otherwise agreed) above the base lending rate from time to time of the Bank of England calculated on a daily basis in respect of any sum which is due and unpaid, that interest to run from the date on which that sum is due and payable until receipt by the Company of the full amount, whether before or after judgment. Any interest payable under this condition shall be paid immediately on demand by the Company.
- Notwithstanding clause 5.7 the Company may in the alternative claim interest under the Late Payment of Commercial Debts (Interest) Act 1998
- The Company may suspend or cancel the provision of the Products or may at its discretion request security for payment from the Customer in the event of late payment under the Contract or any other contract between the Company and the Customer. If the Customer fails to comply with any request made by the Company for security for payment within 15 days of the date of the Company’s request the Company may terminate the Contract without liability to the Customer immediately by giving written notice to the Customer.
- The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
DELIVERY OF THE PRODUCTS
- Unless otherwise agreed in writing by the Company, delivery of the Products shall take place at the Company’s premises or such other location as is specified in the Quotation.
- The Company will use reasonable endeavours to give the Customer prior notice of any delivery date.
- The Customer must take delivery at the time so notified (or if delivery takes place at some other time then as soon as practicable) and afford the Company access to the delivery location to check the Products and ancillary materials delivered to the delivery location.
- All Products supplied to the Customer which conform in all material respects with the Quotation shall be deemed accepted by the Customer.
- Any dates specified by the Company for delivery of the Products are intended to be an estimate and time shall not be of the essence for delivery and any other obligations under the Contract and shall not be made of the essence by notice. If no dates are so specified, delivery of the Products will be within a reasonable time.
- The Customer understands that delivery of Products is conditional upon availability and the Company shall not be liable if prevented from meeting the Contract because the Products are not readily available by reason of any circumstances outside the control of the Company.
- If for any reason the Customer will not accept delivery of any of the Products when they are ready for delivery, or the Company is unable to deliver the Products on time because the Customer has not provided or obtained appropriate instructions, documents, licences, consents or authorisations (“Customer Caused Event”), the Products will be deemed to have been delivered, risk in the Products will pass to the Customer and the Customer shall pay to the Company any additional costs and expenses incurred by the Company as a result of the Customer Caused Event (including storage and insurance).
- The Customer will provide at its expense at the place where delivery of the Products is to take place adequate and appropriate equipment and manual labour for loading or unloading the Products.
- The Company shall unload the Products promptly on delivery of the Products and in any event shall unload the Products within 3 hours of their delivery.
- The Company reserves the right to make partial deliveries. The Customer shall not be entitled to object to or reject the delivery by reason of the surplus, shortfall, non centred load or damaged pallet.
- The Customer must give notice in writing of any damage to the Products to the Company within 14 days of delivery of the Products giving full particulars, including the condition of parcels received, failing which the Company is discharged from any liability in respect of such damage and the Products are deemed to be compliant and accepted.
- Any liability of the Company for non-delivery of the Products shall in all circumstances be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata Price against any invoice raised for such Products.
- Any tests that the Customer wishes the Company to carry out on the Products in the presence of the Customer will only be carried out if agreed in writing by the Company and if the Customer pays the Company’s charges for such tests at the Company’s standard charges in force from time to time and any additional charges imposed by the Company for light, heat, water and the hiring of special equipment that may be needed for the purposes of such tests.
- The Customer must not mark the bags or other packaging material for the Products. The Customer is deemed to have accepted the Products if it marks the bags or other packaging material containing the Products.
- The Customer accepts that the Products are recycled and it is the Customer’s responsibility to check that the Products are suitable for the Customer’s purposes (including its production and manufacturing processes) and the Customer shall satisfy itself that the quality and the amount of metal and other materials present in the Products are suitable for the Customer’s production processes and other uses to which the Customer intends to put the Products. [The Customer accepts that the use of the Products in the Customer’s manufacturing processes may result in some discolouration of the end product produced using the Products.]
- The Customer is deemed to have accepted the Products once it uses the Products in its production processes.
- Where the Company has agreed in the Quotation to provide certificate of analysis stating results of pre-inspection the following terms apply:
- Before delivering the Products to the Customer, the Company shall carry out the pre-inspection for the relevant Products specified in the Quotation, or if no pre-inspections are specified in the Quotation, the Company shall carry out reasonable inspections to ensure that such items conform to their specification in all material respects;
- If the Products fail, in some material respect, to pass the inspections (an “Failure”), the Company shall use reasonable efforts to correct any such Failure within a reasonable time. If the Company is unable to correct the Failure within a period of six months from the start of the inspections (or such longer period as the parties may agree), the Company shall notify the Customer and (i) either party may without liability to the other party terminate the Contract immediately by giving notice in writing to the other; or (ii) The Customer may permit delivery of the relevant Products subject to amendment of the Quotation and/or reduction in the Price as, after taking into account all the relevant circumstances, is reasonable.
- Customer understands and agrees that except where the Company has expressly agreed in the Quotation to pre-inspect the Products before delivery, the Company has no obligation to carry out any inspections before delivery to the Customer.
- Where the Company has agreed in the Quotation to provide certificate of analysis stating results of pre-inspection the following terms apply:
- Where the Products are supplied for export from the United Kingdom, the provisions of this condition 8 shall (subject to any contrary terms agreed in writing between the Customer and the Company) override any other provision of these Terms.
- Unless otherwise agreed in writing by the Company, the Customer shall be responsible for obtaining any necessary import licences or permits necessary for the entry of the Products into the country where the Customer is located, or their delivery to the Customer. The Customer shall be responsible for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Products.
- In circumstances where the Company has agreed to obtain any necessary import licences or permits necessary for the entry of the Products into the country where the Customer is located and the Company is unable to obtain such licences the Company may terminate the Contract in respect of such Products immediately by giving written notice to the Customer. Any liability of the Company for termination of the Contract under this conditions 8.3 shall in all circumstances be limited to issuing a credit note at the pro rata Price against any invoice raised for such Products.
- The Customer shall:
- unless otherwise agreed in writing, prepare its premises for delivery of the Products in such manner as set out in the Quotation or as the Company shall reasonably require; and
- keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation.
- The Customer and the Customer’s Representative undertake to give notice in writing to the Company and any of the Company’s agents or contractors of any laws and regulations which affect or may affect the Products (the “Local Regulations”) any special site conditions and/or any safe working procedures. If the Customer fails to inform the Company of any Local Regulations, site conditions and/or safe working procedures which may apply to the Customer’s premises and/or advise the Company of any prospective changes in the Local Regulations the Company will be entitled to alter these Terms for the provision of the Products (including increasing the Price).
- The Customer undertakes to the Company throughout the term of the Contract to take all reasonable precautions to protect the health and safety of the Company’s employees, agents and sub-contractors while on the Customer’s premises.
- If for any reason (other than as a direct result of the Company’s negligence), access to the Customer’s premises is delayed, the Customer shall be liable for any loss or damage suffered by the Company as a result of such delay.
- The Customer shall be solely responsible for obtaining any legal consents and permissions required for the operation of the Products at the Customer’s premises. The Company shall not be liable for any failure by the Customer to obtain such consents or permissions.
- If the Company’s performance of any of its obligations in respect of the Products is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- the Company shall without limiting its other rights or remedies have the right to suspend delivery of the Products until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
- the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this condition 9.6; and
- the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
- If suspension pursuant to condition 9.6 continues for a period of 7 days or more (or the parties cannot agree to any new terms including an increase in the Price) the Company shall be entitled (without prejudice to its other remedies under the Contract for such breach) to:
- terminate the Contract immediately by giving written notice to the Customer (and be entitled to payment for loss of profit and payment at the Company’s standard charges for Products, supplied or ordered); and
- sell or, at its option, destroy the Products where title to the Products has not passed to the Customer to apply the proceeds of sale thereof if sold, and the scrap value if destroyed, towards payment of all sums due to the Company under the Contract.
- The Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with any claim made against the Company by a third party arising out of or in connection with the supply of the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Customer, its employees, agents or subcontractors.
- The Customer shall:
- The Products are at the risk of the Customer from the time of delivery.
- Ownership of the Products shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Products.
- Until ownership of the Products has passed to the Customer, the Customer must:
- hold the Products on a fiduciary basis as the Company’s bailee;
- store the Products (at no cost to the Company) separately from all other products of the Customer 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 Products;
- maintain the Products in satisfactory condition (which includes keeping the Products dry) 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 Customer shall produce the policy of insurance to the Company;
- hold the proceeds of the insurance referred to in condition 10.3(d) on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account; and
- not mark the bags or other packaging material containing the Products
but the Customer may resell or use the Products in the ordinary course of its business.
- Until ownership has passed the Customer’s right to possession of the Products shall terminate immediately if the Customer ceases trading or is unable to pay its debts as they fall due or a petition is presented or meeting convened for the purpose of winding the Customer up or the Customer enters into liquidation, whether voluntarily, or compounds with its creditors generally or has a receiver appointed of all or any part of its assets or the Customer encumbers or in any way charges any of the Products or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly or if the Company terminates the Contract.
- The Company shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the Company.
- The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
- TERM AND TERMINATION
- The Company may terminate the Contract immediately at any time by written notice if:
- the Customer commits a breach of any term of the Contract; or
- the Customer fails to make any payment due to the Company under the Contract by the due date for payment; or
the Customer ceases trading or is unable to pay its
- debts as they fall due or a petition is presented or meeting convened for the purpose of winding the Customer up or the Customer enters into liquidation, whether compulsorily or voluntarily, or compounds with its creditors generally or has a receiver appointed of all or any part of its assets; or
- any of the owners of the Company dies; or
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 11.1(c).
- On termination, however it arises, the Customer shall pay to the Company all costs and expenses, including legal and other fees incurred and all arrears of charges or other payments arising in respect of the Contract or otherwise.
- If at any time the Products or any part of the same become contrary to any statutory or regulatory requirement or any mandatory or non-mandatory embargo or the Company reasonably believes the Products are likely to become so, the Company may, without liability to the Customer, immediately suspend performance of the Contract and/or terminate the Contract by giving written notice to the Customer.
- Termination, however or whenever it occurs, shall be subject to any rights and remedies the Company may have under the Contract or in law.
- The following conditions shall survive termination of the Contract: conditions 4.2, 5, 8, 11, 13-19 inclusive and any other relevant conditions.
- The Company may terminate the Contract immediately at any time by written notice if:
- The Company shall use all reasonable care and skill to provide the Products in a professional and efficient manner.
- The Company warrants that on delivery the Products shall conform to their description and any applicable specification in all material respects.
- Subject to condition 12.4, if:
- the Customer gives notice in writing to the Company within 21 days of discovery that some or all of the Products do not comply with the warranty set out in condition 12.2;
- the Customer provides such information about such Products and the circumstances regarding the use of the Products as the Company may reasonably require;
- the Company is given a reasonable opportunity of examining such Products;
- the Customer (if asked to do so by the Company) returns such Products to the Company’s place of business or to another place specified by the Company in the United Kingdom at the Company’s cost; and
- the Products are shown, to the Company’s reasonable satisfaction, not to comply with the warranty set out in conditions 12.2
- the Company shall, at its option, repair or replace the defective Products or refund the price of the defective Products in full.
- The Company shall not be liable for a breach of the warranty contained in Condition 12.2 or under any obligation to comply with conditions 12.3 if:
- the Customer makes any use of the Products in respect of which it has given written notice under Condition 12.3(a); or
- the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, commissioning, quality control checks, use or maintenance of the Products or (if there are none) good trade practice regarding the same
- the defect arises as a result of the Company following any drawing, design or Products specification supplied by the Customer;
- the defect is caused by improper use of the Products or use outside their normal application; or
- the defect arises due to fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
- the Customer (or any of its employees, agents or sub-contractors) alters or repairs the Products without the written consent of Company; or
- the Customer cannot show, to the Company’s reasonable satisfaction, that the Products do not comply with the warranty set out in condition 12.2; or
- the Customer fails to provide such information and access as may be reasonably requested by the Company to enable the Company to examine the Products and the conditions in which the Products are alleged to have failed to comply with the warranty set out in condition 12.2; or
- the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- If any defect resulting from faulty works cannot be expeditiously carried out on the Customer’s premises, the Company may remove the Products (or any part of the Products) from the Customer’s premises for the purpose of repair.
- Except as set out in this condition 13 or as otherwise agreed by the Company in writing, the Company shall not be liable for any labour expense or transportation cost incurred by the Customer in repairing or replacing Products covered by the warranty in condition 12.2.
- The Customer shall indemnify and hold the Company harmless against all charges, costs, expenses and liabilities incurred by the Company or their agents as a result of any work carried out pursuant to Condition 12.2 if in the Company’s sole opinion, the defect arose as set out in condition 12.4.
- Except as provided in this condition 12, the Company shall have no liability to the Customer in respect of the Products failure to comply with the warranty set out in condition 12.2.
- These Conditions shall apply to any repaired or replacement Products supplied by the Company.
LIMITATION OF LIABILITY
- In this Condition 13 the following shall mean an “Event of Default”:
- any breach by the Company of its contractual obligations arising under the Contract (other than a breach arising from wilful default or recklessness);
- any misrepresentation by the Company in connection with (whether or not contained in the Contract) the Contract (other than a fraudulent misrepresentation);
- any tortious, act or omission, including negligence, arising in connection with the Company’s performance under the Contract (other than any act or omission which is fraudulent or dishonest); and/or
- any other act giving rise to a liability in respect of the Contract.
- The Company shall not be liable for any Event of Default caused by:
- any act or omission of the Customer which is relative to its obligations under the Contract;
- any failures of any third parties to provide equipment, software, materials or information required to produce the Products; and/or
- down time of the computer systems caused by suppliers of third party computer services provided that (and to the extent that) the same is not due to any act, negligent omission or default of the Company, its employees, agents or sub-contractors.
- Subject to condition 13.8:
- the Customer acknowledges that the Company shall have no liability in respect of the suitability of the Products which have been recommended and/or selected by the Company in accordance with the Customer’s requirements and the Customer Information;
- the Company shall not be liable to the Customer in respect of any Event of Default for: (i) loss of profits; or (ii) loss of business; or (iii) depletion of goodwill or similar losses; or (iv) loss of anticipated savings; or (v) loss of goods; or (vi) loss of contract; or (vii) loss of use; or (viii) loss or corruption of data or information; or (ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses even if such loss was reasonably foreseeable or the Company had been advised of incurring the same;.
- the Company’s liability to the Customer in respect of each Event of Default shall be limited to the fee payable by the Customer for the Products that is the subject of the Event of Default;
- the Company’s entire aggregate liability to the Customer in respect of any and all Events of Default shall be limited to £20,000;
- If any advice provided to the Customer by the Company was provided free of charge by the Company then such advice is provided as is without any warranty of any kind from the Company and the Company shall have no liability in relation thereto;
- the Company shall have no liability to the Customer in respect of any Event of Default unless notice in writing of such claim (specifying in reasonable detail with supporting evidence the event, matter or default which gives rise to the claim and an estimate of the amount claimed) has been given to the Company within 12 months of the Customer becoming aware of the circumstances and in any event within 12 months following delivery of the Products giving rise to such claim provided that without prejudice to their rights, the Customer and the Company agree that if they have reason to believe that they may have a cause of action hereunder, they shall liaise with the other in an open and co-operative way with a view to rectifying the reason for such cause of action whenever practicable.
- If a number of Events of Default give rise substantially to the same loss or a number of Events of Default flow from the same defect then such Events of Default shall be regarded as giving rise to only one claim under these Terms.
- The Customer hereby agrees to afford the Company not less than 60 days (following notification thereof by the Customer) in which to remedy any Event of Default hereunder.
- Nothing in this condition 13 shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.
- The Company shall not be liable for defects in Products caused by fair wear and tear, abnormal conditions of storage, of use or any act, neglect or default of the Customer or any third party.
- Notwithstanding any other provision under these Terms or otherwise each party’s liability to the other for:
- death or personal injury resulting from its own or its employees’, agents’ or sub-contractors’ negligence; and/or
- any breach of the terms implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982;
- defective products under the Consumer Protection Act 1987; and/or
- fraud or fraudulent misrepresentation shall not be limited or excluded.
- Subject to condition 13.8, all warranties conditions and terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract (including any implied term that the Products will be fit for any particular purpose).
- For the purposes of this condition 13, the “Company” includes the Company’s Group who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999 and who may avail themselves of the exclusions and limitations in this clause 13 in respect of any claim (whether for negligence or otherwise) made against the Company’s Group by the Customer that arises in connection with the Contract.
- In this Condition 13 the following shall mean an “Event of Default”:
INTELLECTUAL PROPERTY RIGHTS
- The Customer acknowledges that any and all Intellectual Property Rights in or arising out of or in connection with the Products shall be owned by the Company
- At the Customer’s expense the Customer shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as the Company may require for the purpose of giving full effect to condition 14 (including doing all such things as may be necessary to register the Company as owner of registrable rights).
- For the avoidance of doubt other than as expressly agreed in writing nothing shall be interpreted as granting the Customer any rights in the Company’s or any third party’s Intellectual Property Rights.
- Both parties shall treat Confidential Information obtained from the other as confidential and shall not without the prior written agreement of the other at any time hereafter (save as required by law or any regulatory organisation with authority over it) disclose such information to any third party (other than those of its officers, employees advisers and agents whose responsibilities require them to know the same) or use it for any purposes other than for the performance of its obligations pursuant to the Contract (unless such information is in the public domain or is already known to the non-disclosing party otherwise than as a result of a breach of any duty of confidentiality owed in respect of such information).
- The parties agree that unless otherwise agreed by the parties, any confidentiality agreement between the Customer and the Company signed on or before the date of the Contract and relating to the subject matter of the Contract shall remain in full force and effect.
- Both during the Contract (fulfilment of purchase order) and for a period of twelve months after the termination of the Contract (completion of the purchase order) the Customer shall not (without the Company’s prior written consent) directly or indirectly solicit or entice away (or attempt to solicit or entice away) any senior staff of the Company who have been engaged in the provision of the Products or the management of the Contract or any significant part thereof either as principal, agent, employee, independent contractor or in any other form of employment or engagement other than by means of a national advertising campaign open to all-comers and not specifically targeted at the Company’s staff.
- If the Customer commits any breach of condition 16.1, the Customer shall, without prejudice to any other rights or remedies of the Company, on demand, pay to the Company a sum equal to one year’s basic salary or the annual fee that was payable by the Company to that employee, worker or independent contractor plus the recruitment costs incurred by the Company in replacing such person.
- The Customer undertakes to the Company that except with the prior written consent of the Company, it shall not for a period of twenty four (24) months after the termination of the Contract canvass, solicit or otherwise seek the custom of, or have any dealings with any person who is at any time during the Contract a supplier of the Products to the Company, in relation to the supply of goods or products the same as or similar to those supplied by the Company.
- In order to protect Confidential Information, trade secrets and business connections of Bantam and Bantam’s Group, the customer covenants with Bantam that it shall not, and shall procure that no customer shall:
- during the Restricted Period, solicit or endeavour to entice away from Bantam or any of Bantam’s Group the business or custom of a Restricted Supplier with a view to purchasing Restricted Goods and Services from that Restricted Supplier or to procure or facilitate such solicitation or enticement by any other person; or
- during the Restricted Period, solicit or endeavour to entice away from Bantam or any of Bantam’s Group the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business or to procure or facilitate such solicitation or enticement by any other person;
- during the Restricted Period, be involved with the purchase of goods and/or services from (or otherwise have any business dealings with) any Restricted Supplier in the course of any business concern which is in competition with any Restricted Business;
- during the Restricted Period be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business; or
- during the Restricted Period solicit or induce any Restricted Customer or Restricted Supplier to terminate or reduce its business with Bantam or to procure or facilitate such solicitation or inducement by any other person.
- Any breach of non-solicitation will result in Bantam seeking damages.
- The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
- The Company may at any time assign, transfer, mortgage, charge, sub-contract or deal in any other manner with any or all of its rights and obligations under the Contract.
- To the extent that the Customer’s consent is required by law to novate the burden of the Contract to a third party the Customer shall not unreasonably refuse or delay its consent.
- FORCE MAJEURE
- Neither party shall be liable for delay in performing or failure to perform obligations under the Contract if the delay or failure results from “force majeure”. For the purposes of the Contract “force majeure” shall mean any Act of God war riot act of terrorism outbreak of hostilities strike or other industrial action of any kind malicious damage default of suppliers or sub-contractors accident failure or breakdown of plant or machinery fire flood explosion any act of local or national government or authority and any cause or circumstance whatsoever outside the reasonable control of the parties.
- In the event of any delay or failure under the Contract resulting from “force majeure” the affected party may rely on the provisions of this condition for exemption from liability for non-performance part performance defective performance or delay and if any such delay or failure continues for a period in excess of 120 consecutive days either party shall have the right to terminate the Contract immediately by giving written notice to the other party.
- Any notice given pursuant to the Contract shall be in writing and may be sent by first class pre-paid recorded delivery post or fax to the party to whom it is addressed at his or its address as herein specified or subsequently notified and if sent by first class pre-paid recorded delivery post shall be deemed to have been received two working days after the date of posting and if sent by fax shall be deemed to have been received at the time transmission was duly completed. A notice given under the Contract is not valid if sent by e-mail.
- It is acknowledged and agreed that the Contract (including the documents and instruments referred to herein) (the “Documents”) shall supersede all prior representations arrangements understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto;
- The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently);
- It is further acknowledged and agreed that no representations arrangements understandings or agreements (whether written or oral) made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents.
- Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
- No purported variation, change or modification of these Terms shall be valid unless confirmed in writing in a document signed by authorised representatives of both parties on or after the date of the Contract which expressly states that it amends the Contract.
- Should any condition or provision of these Terms be held to be invalid or unenforceable such finding shall not affect the validity of the remaining conditions and provisions of these Terms.
- These Terms are drafted in the English language. If the Contract is translated into any other language, the English language version shall prevail. Any notice given under or in connection with the Contract shall be in the English language. All other documents provided under or in connection with the Contract shall be in the English language, or accompanied by a certified English translation. If such document is translated into any other language, the English language version shall prevail unless the document is a constitutional, statutory or other official document.
- Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Except as expressly provided elsewhere in these Terms a third party shall have no right to enforce these Terms under the Contracts (Rights of Third Parties) Act 1999. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.
- The Contract shall be governed by and construed in accordance with the laws of England and Wales and each party hereby irrevocably submits to the exclusive jurisdiction of the English Courts.
- The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with these Terms, these Terms shall prevail.
- In these Terms the following words have the following meanings:
“Contract”: any Contract between the Company and the Customer for the sale and purchase of the Products, incorporating these Terms and formed in accordance with condition 2.5;
“Customer”: the person(s), firm or company who purchases the Products from the Company;
“Customer’s Representative”: any representative of the Customer;
“Company” Bantam Materials UK Limited;
“Confidential Information”: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives or advisers (together its Representatives) to the other party and that party’s Representatives in connection with the Contract, concerning: (a) the existence and terms of the Contract; (b) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); (c) any information developed by the parties in the course of carrying out the Contract (d) any information about the Company’s suppliers of the Products;
“Customer Information”: the information that the Customer provides to the Company in relation to the Products including all relevant details which relate to the Customer’s requirements for the provision of the Products;
“Intellectual Property Rights”: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including without limitation all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Group”: in relation to a company, that company, each and any subsidiary or holding company from time to time of that company, and each and any subsidiary from time to time of a holding company of that company and for the purposes of this definition “holding company” and “subsidiary” have the meanings given in condition 2(h);
“Operating Manuals”: all operating manuals, specifications, risk assessment method statements and other manufacturer documentation relating to the Products;
“Price”: has the meaning specified in condition 5.1;
“Products”: collectively or individually the products agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them) as more particularly described in the Quotation;
“Quotation”: the proposal attached to these Terms containing details of the Products, delivery and Price;
- In these Terms, the following rules apply: (a) Words in the singular include the plural and in the plural include the singular; (b) A reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (c) A reference to a statute or statutory provision is a reference to it as it is in force for the time being (d) taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it; (e) Unless the context otherwise requires, the words including, include and in particular and words of similar effect shall not be deemed to limit the general effect of the words which precede them (f) The headings in these Terms are for ease of reference only and shall not affect their construction or interpretation (g) A reference to writing or written includes faxes and e-mail (h) A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (i) another person (or its nominee) by way of security or in connection with the taking of security, or (ii) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (i) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (ii) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
- In the case of any inconsistency between the Quotation and these Terms, these Terms will prevail.