STANDARD CONDITIONS OF CONTRACT (“the Conditions”)
IN RESPECT OF MAT-TECH JOINING TECHNOLOGIES LIMITED
(PART OF MAT-TECH GROUP)
- Interpretation
In these Conditions the following expressions shall, unless the context requires, have the following meanings:
“Company” means Mat-Tech Joining Technologies Limited registered in England and Wales with company number 11665806 and Mat-Tech B.V. registered in the Netherlands with company number 27231966, both part of the Mat-Tech Group.
“Contract” means any contract formed between the Customer and the Company for the application of a Process to Goods.
“Customer” means the person, firm or company placing any order with the Company for a Process.
“Goods” means the goods (or any part of them) to which Processing is to be applied by the Company pursuant to the Contract.
“Hazards of Processing” means including, but not limited to:
- In respect of the Processes detailed at i. of the definition below: cracking; distortion and failure to respond to the Process; and of the effects of hardenability; sharp corners; segregation; manufacturing history; and section size.
- In respect of the Processes detailed at ii. of the definition below: dimensional or surface change (such as discolouration) associated with thermal distortion; modification of microstructure due to application of pressure and temperature including localised effects in materials exhibiting segregation; and surface condition being affected by outgassing or residual gas.
iii. In respect of the Processes detailed at iii. of the definition below: distortion; thread damage; discolouration; tempering back hardness; overspray; chemical attack to base material; mechanical damage; embrittlement of high tensile steels; and contamination of Goods in process.
“Process” and “Processing” means, as appropriate:
- Vacuum brazing, diffusion bonding, brazing, soldering, other joining processes deemed suitable or any other treatment or process applied by the Company under instruction or request of the Customer including but not limited to sourcing of material, manufacture of monoparts, as well as processing of parts and assemblies following joining.
- Metallurgical coatings and finishes, spraying, any associated processes and any other treatment or process applied by the Company or Subcontractor.
“Suitable for Processing” means the Goods must be in a clean condition, consisting only of the specified material free from any oil, grease, dirt, chemical or other contaminating matter when handed to the Company or its agent for Processing.
- General
2.1 Unless otherwise expressly agreed in writing by a director of the Company these Conditions are the only terms on which the Company accepts any order or Goods for Processing. These Conditions apply to all orders, whether or not these Conditions were specifically referred to at the time of ordering, to the exclusion of all other terms and conditions including any contained in an acceptance of a quotation, a form of order or any other document issued by the Customer. Further, no condition, statement or representation contained in any advertisement or brochure or in any trade or promotional circular or other literature, nor the terms or conditions of any trade association or other body, or which would or might but for this Condition be implied or incorporated by custom or trade, usage, negotiations, course of dealings or otherwise shall be deemed to be incorporated in the Contract and all of the same are hereby expressly excluded from the Contract. Delivery of the Goods to the Company or collection of the Goods by the Company (as the case may be) shall be deemed to be conclusive evidence of the Customer’s acceptance of these Conditions.
2.2 The Company and the Customer acknowledge that these Conditions have been given due consideration and that they are considered fair and reasonable by the Company and the Customer.
2.3 Each order placed by the Customer for Processing by the Company shall be deemed to be an offer by the Customer to purchase Processing services subject to these Conditions.
2.4 No order placed by the Customer which the Company has accepted may be cancelled or varied by the Customer except with the written agreement of the Company. The Customer shall be liable for all losses (including loss of profit, costs, damages, charges and expenses) suffered or incurred by the Company as a result of such cancellation or variation.
2.5 Without prejudice to Conditions 2.6 and 3.2 below, any representations to be binding upon the Company must be specifically agreed to in writing by the Company.
2.6 The Customer acknowledges that save in the circumstances provided for in Condition 2.5 above and subject to Condition 11.9 below, no representation whether oral or in writing has been made by any of the Company’s agents representatives or employees which has led the Customer to enter into the Contract.
- Quotations
3.1 Unless previously withdrawn, the Company’s quotations are only open for acceptance within three months from the date thereof and, where given without sight of the Goods, are provisional only.
3.2 Specifications, descriptions and illustrations contained in the Company’s catalogues, brochures or other advertising materials in whatever form, whether hard copy format, electronic format or otherwise, are intended to give only a general idea of the services concerned and the possible result of any Processing and no such specifications, descriptions or illustrations shall form any part of the Contract or form any warranty or representation by the Company.
3.3 The Company may make any changes to the specification, materials or finishes which are required to conform with any applicable safety or other statutory requirements.
3.4 After examination of samples of the Goods, the Company has the right to amend any quotation or decline to accept Goods for Processing or not to proceed with any order.
3.5 The Company may, by giving notice to the Customer at any time up to receipt of the Goods by the Company for Processing, increase any price quoted to reflect any increase in the cost of Processing which is due to any increase in the cost of labour, materials or other manufacturing costs and transport costs.
3.6 In addition to the amount specified in the quotation the following shall be payable if appropriate:
3.6.1 any applicable value added tax;
3.6.2 package, insurance, freight, travel costs, bank charges, storage charges and disbursements incurred on behalf of the Customer, whether on the Company’s premises or elsewhere;
3.6.3 insurance incurred by the Company, in its absolute discretion, in respect of any property belonging to the Customer in the possession of the Company;
3.6.4 with prior notice, the cost of all sub-contractors employed by the Company unless included in the quotation;
3.6.5 any additional costs incurred by the Company in accordance with the Conditions; and
3.6.6 any special standards or specifications required for the performance of the Process.
- Ownership
The Customer hereby warrants that it is either the owner of the Goods delivered to or accepted by the Company for Processing or that it is authorised by the owner of the Goods to accept these Conditions on such owner’s behalf.
- Transportation of Goods
5.1 Unless otherwise stated in the quotation, charges for carriage, packing, storage, handling, customs clearance, customs duties and insurance are payable by the Customer. The Customer undertakes at its own expense and risk both to deliver the Goods to the Company’s works on the date and at the time notified by the Company and to collect them within 10 working days after notification by the Company that the Processing has been completed. Where Customer instructs the Company to arrange delivery of the Goods to and from the Company’s works on their behalf any charges under this clause will be added to the invoice or will be billed separately to the Customer.
5.2 If the price quoted by the Company includes transport of the Goods to and from the Company’s works, the Company will arrange transport by whatever method the Company considers appropriate (which may be transport by a third party carrier, rather than by the Company). The Company will insure the Goods during such transport if such Goods are transported by the Company’s own vehicles (but not if the Goods are transported by vehicles of a third party carrier where such Goods shall be carried at the Customer’s risk) and the Company shall only be liable for the loss or destruction of or damage to the Goods in transit carried on the Company’s vehicles as a result of the Company’s negligence and shall not otherwise be liable for any loss or destruction of or damage to the Goods in transit.
5.3 The Customer shall be responsible for the adequate packing of the Goods to protect them in transit against weather conditions, impact damage and other transport risks and for the provision of suitable stillages, pallets and other containers. The Customer shall use such packing materials as are suitable for re-use by the Company where the Company is responsible for delivering the Goods to the Customer. No warranty whatsoever is given by the Company that packing materials, cases, cartons and pallets will be returned to the Customer but wherever possible these will be returned to the Customer with the Goods.
5.4 If such adequate packing is not provided, the Company shall use commercially reasonable efforts to package the components in a manner it considers suitable to provide reasonable protection during transit. However, in such circumstances, all risk of loss or damage during transit shall remain with the Customer. The Company shall not be liable for any damage arising from inadequate packaging supplied by the Customer or from transit risks where packaging has been provided by the Company in the absence of Customer-supplied packing.
- Variation in Prices
6.1 In the event of suspension of work on the Goods at the Customer’s request or as a result of the inadequacy or inaccuracy of the Customer’s instructions, any price quoted by the Company may be increased to cover any additional costs or expenses incurred by the Company as a result thereof.
6.2 If the Customer does not indicate to the Company plainly and correctly the type of Goods, including all relevant specifications (including, without limitation, make, brand and grade) of the Goods and all materials in the Goods to which Processing is to be applied and/or fails to give to the Company correct and complete instructions as to the Processing, including the specification, required, the Customer shall be liable for any additional costs or expenses incurred by the Company and any loss of profit, loss of business or loss of use of plant and equipment suffered by the Company whether as a direct or indirect result thereof.
6.3 When prices are quoted which include delivery to and/or collection of the Goods from any delivery address outside the United Kingdom, any increase in insurance, packing or freight costs, import duty, internal taxes or any other charges incidental to the delivery of the Goods between the date of the Contract and the date of delivery and/or collection, as the case may be, together with all costs of any trans-shipment and/or deviation of voyage shall be paid by the Customer.
6.4 The Customer shall be liable for all costs, charges and expenses whatsoever in connection with the opening, advising, confirmation, negotiation and operation of any letter of credit, the transfer of cash to the Company and/or the release of any shipping documents.
6.5 The cost of any variation or modification to the order requested by the Customer after the date of the acceptance of order shall, if such variation or modification is accepted by the Company under Condition 2.4 above, be borne by the Customer.
- Suitability of Goods for Processing
7.1 It shall be the Customer’s responsibility to ensure that the Goods are Suitable for Processing. If at any stage the Company in its sole discretion considers that the Goods are not Suitable for Processing (or, if Processing has begun, for further Processing) whether in accordance with the Company’s quotation or otherwise, the Company will advise the Customer as soon as is reasonably practicable and shall be entitled to discontinue Processing forthwith. The Company shall thereupon notify the Customer of the Company’s outstanding charges in respect of Processing carried out up to the date of such discontinuance and the Customer shall pay the same within 28 days of the date of such notification. Unless the Company agrees to arrange transport the Customer will collect the Goods at its own expense and risk from the Company’s works as soon as possible following notification of the discontinuance of the Processing.
7.2 The Customer undertakes that its Goods will not damage the Company’s equipment (including, without limitation, the Company’s furnace or any other equipment, property or goods in any way during the Process properly carried out by the Company. The Customer undertakes that the Goods are Suitable for Processing, safe with respect to danger of toxicity, combustion, pollution or other harmful effect. The Customer hereby agrees to indemnify and hold the Company harmless from and against any loss, damage or injury (including consequential loss and loss of profit) caused to the Company’s equipment, property, goods, premises, personnel, sub-contractors or agents or of any third party or otherwise suffered as a result of the Customer’s failure to comply with the provisions of this Condition.
7.3 If the Customer is in any doubt as to the suitability of its Goods for subjection to the Processing it should discuss the matter with the Company in advance but no representations by the Company shall limit or discharge the responsibility of the Customer under this Condition.
7.4 Where the Company sources materials, mono-parts, or components on behalf of the Customer, such sourcing shall be deemed an ancillary service provided for the Customer’s convenience. Notwithstanding such sourcing, the Customer shall remain solely responsible for ensuring that all materials and parts supplied to, or procured for, processing by the Company are suitable for the intended application and meet all required specifications and quality standards. The Customer shall be responsible for reviewing and approving all relevant technical, material, and quality documentation prior to release for subsequent processing. The Company accepts no liability for defects, non-conformities, or unsuitability arising from the inherent quality, specification, or condition of materials or parts supplied or approved by the Customer.
7.5 The Customer acknowledges and agrees that material properties may change as a result of thermal treatment, heat treatment, or any other processing carried out by the Company. The Company does not warrant or guarantee that the processed materials, components, or parts will be suitable for the Customer’s intended purpose or application. Responsibility for determining the final suitability, performance, and fitness for purpose of any materials or components following processing shall rest solely with the Customer.
- Carrying Out of Work
8.1 Any times quoted for Processing and/or for collection and/or delivery of the Goods are estimates only and time shall not be of the essence in respect thereof.
8.2 Any times quoted for Processing shall run from receipt (at the place of Processing) by the Company of the Goods and of all information required by the Company in order to put the Processing in hand.
8.3 In any event, the time for completion of the Processing shall be extended by a reasonable period if completion of the Processing is delayed as a result of the nature or lack of instructions from the Customer, or by any cause beyond the Company’s control.
8.4 The Company may, at its sole discretion, undertake to give priority in carrying out a particular Process. A surcharge may be imposed by the Company for the carrying out of priority work. Details of these arrangements will be issued by the Company on request.
- Force Majeure
9.1 If the Company is in any way prevented from or delayed in performing any of the Company’s obligations under the Contract by reason of decisions or actions of any Government or other authority, war or threat of war, fire, explosion, material damage to or failure of plant and equipment, severe weather conditions, materials shortages or inadequacies, interruption or reduction in communications, delay or reduction of availability of transport, power or utilities, failure or delay in obtaining materials required for Processing, any strikes, lock-outs or industrial disputes (whether or not involving the Company’s work force), accident or any other cause beyond the Company’s control, the Company shall be entitled at the Company’s absolute discretion partially or totally to suspend performance of the Contract for a period equal to the delay caused by such events and shall not be liable in any way for such failure to perform its obligations under the Contract or for such delay.
9.2 If the period for performance of the Contract is extended as a result of such suspension by more than one month the Contract may be terminated (as regards any Goods which have not undergone Processing) by the Company or the Customer by written notice to the other but such termination shall be without prejudice to the Company’s rights to require the Customer to take delivery of and/or collect any Goods and to pay for the Processing of such Goods as are or may be available for delivery and/or collection and without prejudice to any rights which may have accrued to either party prior to the date of such termination. Furthermore, if the Company is unable to meet the demands of any Customer as a result of any such event the Company may allocate the available Processing capacity among its Customers as the Company in its absolute discretion considers fit and without incurring any liability whatsoever to any Customer.
- Payment Terms
10.1 Unless otherwise agreed in writing by the Company, payment in full in cleared funds of all sums due under the Contract shall be made in pounds sterling (or such other currency as the Company shall specify on its quotation) on the 30th day following the date of the invoice issued by the Company.
10.2 Time for payment shall be of the essence. Without prejudice to the Company’s other rights and remedies, interest shall be payable at the rate of 4% per annum above the base rate from time to time of the main bank of the Company and shall accrue from day to day on all overdue payments (after as well as before judgement) and in default of payment being made on time the Company may: suspend any further Processes being carried out for the Customer; alter or withdraw credit terms; and amend terms, prices or service levels.
10.3 Any payments due under the Contract shall be made in full without any deduction whether by way of set off, counterclaim or otherwise unless otherwise agreed by the Company in writing or unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
10.4 Where the Company specifies that payment will be made by letter of credit, the Customer must establish and maintain in favour of the Company an irrevocable and unconditional letter of credit with or confirmed by a bank in England satisfactory to the Company. No delivery or collection of Goods or Processing will take place until such a letter of credit has been opened and the Company is satisfied with all arrangements relating thereto. If for any reason the bank in question is liable to make payment to the Company under any letter of credit and fails to do so the Customer shall nevertheless remain liable to pay for the Processing of the Goods.
10.5 Each Contract shall be subject to the Company being satisfied as to the Customer’s credit status both prior to and during the period of the Contract. If the Company becomes dissatisfied with the Customer’s credit status at any time, the Company may suspend performance of the Contract or withhold delivery of the Goods until the Customer satisfies the Company as to the Customer’s creditworthiness or gives the Company such security as the Company shall deem appropriate.
- Duties and Responsibility
11.1 While every effort will be taken to Process the Customer’s work correctly, Customers are reminded of the possible Hazards of Processing (which hazards can occur even though the Processing is properly carried out). The Customer hereby acknowledges that the Contract is entered into in full knowledge, awareness and acceptance by the Customer of such Hazards of Processing. In addition, in respect of the Processes detailed at iii. of the definition of Process, the Company shall be under no obligation to ensure that any Goods are an exact match, or that one batch exactly matches another by reference to a sample or by description.
11.2 The Company warrants that it will carry out its obligations under the Contract in good faith and with reasonable care and skill and in accordance with any agreed specification. This warranty shall be the only warranty given in respect of such obligations. Subject to Condition 11.9 below, all other conditions and warranties expressed or implied by statute, common law or otherwise are hereby excluded.
11.3 Subject to Condition 11.9 below, the Company shall not in any event be liable for any breach of the warranty given in Condition 11.2 above or for any breach of the Contract or breach of statutory duty or tort (including but not limited to negligence) misrepresentation or otherwise including, without limitation, for any damage to or loss of Goods as a result of Processing by the Company:
11.3.1 unless the methods employed in manufacturing the Goods prior to Processing by the Company have taken into account the current state of knowledge in the Processing industry and the Customer has ensured that the Goods are made from the correct material and designed to appropriate engineering standards with final machining allowances and have not been subject to any process or treatment by any person other than the Company which renders them not Suitable for Processing and full information concerning the Goods as referred to in Condition 6.2 above has been supplied to the Company before the commencement of Processing; and
11.3.2 unless the Customer checks the quantity and quality of Goods delivered to or collected by the Customer forthwith and notifies the Company in writing of any alleged shortfall of, damage to, or incorrect Processing of the Goods within 14 days thereafter in the case of defects which are reasonably obvious on inspection; and
11.3.3 unless the Customer thereafter affords the Company a reasonable opportunity to inspect the relevant Goods and if so requested by the Company returns the allegedly damaged Goods or the Goods the subject of allegedly incorrect Processing to the Company’s works at the Customer’s expense for inspection to take place there; and
11.3.4 unless the Customer has made no use of the Goods alleged to be damaged or the subject of allegedly incorrect Processing after it discovers or ought reasonably to have discovered that such Goods were damaged or the subject of incorrect Processing; and
11.3.5 unless the Goods have not been subjected to misuse or improperly or incorrectly stored after delivery to or collection by the Customer; and
11.3.6 unless and only to the extent that the allegedly damaged Goods or the Goods the subject of allegedly incorrect Processing exceed 5% of each batch (losses of up to 5% of each batch being accepted as normal in the Processing industry and in processing large quantities of small parts).
11.4 In the light of the great disparity between the value of the Goods undergoing Processing and the charge for Processing made by the Company, the liability of the Company:
11.4.1 for any breach of the warranty given in Condition 11.2 above; and
11.4.2 for any breach of the Contract; and
11.4.3 for any breach of statutory duty or tort (including but not limited to negligence) misrepresentation or otherwise, is limited to re-Processing the Goods if re-Processing will achieve the requirements of the Contract or, if not, a payment of up to the charge made for Processing of the relevant Goods under the Contract which are the subject of a claim. In the case of breach of warranty given in Condition 11.2 above, instead of refunding or waiving the whole or the appropriate part of the charge for Processing the Company may at its option take such steps as the Company considers necessary so as to comply with the said warranty and thereupon this shall be the Company’s only liability in respect of such breach of warranty.
11.5 The Company shall not under any circumstances, whether in contract, tort (including negligence), breach of statutory duty or otherwise be liable for any loss of profit, loss of use, loss of business, loss of market, loss of contract, loss of revenue, loss of anticipated savings or loss of goodwill (whether arising as a direct loss or an indirect loss) or for any indirect or consequential loss, injury or damage of any kind whether caused by negligence or otherwise howsoever and whether or not such loss has been suffered by the Customer or by some third party to whom the Customer may be liable.
11.6 Subject to the other provisions of the Conditions any claim by the Customer against the Company shall be made in writing and notified to the Company within 365 days of completion of the Processes under the Contract by the Company to the Customer.
11.7 Goods are and remain at all times whilst at the Company’s works and (unless Condition 5.2 above applies) during transportation to and from the Company’s works at the entire risk of the Customer who shall be responsible for effecting and maintaining its own insurance cover in relation thereto, it being hereby acknowledged by the Customer that the charges of the Company do not include insurance.
11.8 Joining Processes are offered by the Company on the basis of ensuring maintenance of the measures of time, temperature, pressure and gas cleanliness. It is the Company’s responsibility to ensure that within the normal tolerance limits these parameters are maintained at monitoring points by instruments which are calibrated to national standards. It is accepted that, providing these parameters are maintained, the Customer will have no claim on the Company for incorrect Processing. It is the responsibility of the Customer to assess, by non-destructive testing or other tests, the satisfactory nature of the Process at an early stage after the receipt of the Goods.
11.9 Nothing in these Conditions shall exclude or restrict the Company’s liability:
11.9.1 for breach of the Company’s obligations arising under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
11.9.2 for personal injury or death resulting from the Company’s negligence;
11.9.3 under section 2(3) of the Consumer Protection Act 1987;
11.9.4 for any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or
11.9.5 for fraud or fraudulent misrepresentation.
11.10 The Customer acknowledges that the above provisions of this Condition 11 are reasonable and reflected in the price which would be higher without those provisions and the Customer will accept such risk and/or insure accordingly.
11.11 For all Research & Development and Prototyping assigned under Contract to the Company, the Customer hereby acknowledges that:
11.11.1 the Company does not design the components submitted for processing and relies entirely upon the Customer’s drawings, specifications, material selections, and intended application. The Company shall have no responsibility for the design, fitness for purpose, structural integrity, or performance of the components before or after processing;
11.11.2 due to the developmental nature of prototype work, the Customer acknowledges and agrees that results are not guaranteed;
11.11.3 multiple trials, process adjustments, and/or design modifications may be required to achieve acceptable results. Each trial and or process, if necessary, will be separately quoted and will be agreed by Customer before the Company proceeds after each Development phase;
11.11.4 metallurgical, dimensional, cosmetic, or performance outcomes may vary due to process;
11.11.5 the Company is to be regarded as a service provider for all R&D work and Prototyping;
11.11.6 the Company does not warrant the processed components to meet any particular performance, mechanical, metallurgical, or service-life requirements unless expressly agreed in writing.
11.12 Further to Clause 11.11, the Customer acknowledges that the Company shall not be held liable for:
11.12.1 failure of the joined components in service;
11.12.2 inadequate design of the components;
11.12.3 material incompatibility;
11.12.4 distortion, cracking, voids, leaks, or other metallurgical or dimensional outcomes inherent to prototype or development processing;
11.12.5 any direct, indirect, incidental, consequential, or special damages arising from the use or inability to use the processed components.
11.13 The Customer shall assume full responsibility for final validation, testing, qualification, and approval of the final components and Company Processes for their intended application.
12 Sub-Contracting and Assignment
12.1 The Company may sub-contract the whole or any part of the Contract (unless specifically instructed otherwise in writing by the Customer, at or prior to the time the Contract is made). The Company may also store all or any part of the Goods on premises other than the Company’s premises.
12.2 The Company may assign, delegate, licence or hold on trust all or any part of its rights or obligations under the Contract.
12.3 The Contract is personal to the Customer which may not assign, delegate, licence or hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.
13 Indemnity by Customer
The Customer will indemnify and keep indemnified the Company in full from and against all direct, indirect and consequential liability, loss, damages, injury, costs and expenses (including legal expenses) awarded against or suffered or incurred or paid by the Company arising out of or as a result of or in connection with:
13.1 any claim that the Goods infringe any British or foreign patent, copyright, registered design, design right, trade mark, trade name or other intellectual property right of any third party;
13.2 any claim made against the Company in respect of any liability, loss, damage, cost or expense suffered or incurred by the Company’s employees or agents to the extent that such liability, loss, damage, cost or expense was caused by, relates to or arises out of or in connection with the Goods;
13.3 any claim made against the Company by any third party to the extent that such liability, loss, damage, cost or expense was caused by, relates to or arises out of or in connection with the Goods and/or the Processing thereof by the Company.
14 Tooling or Jigs
Any tools or jigs made by the Company for the purpose of the Contract shall remain the Company’s property notwithstanding that the cost thereof may be included in whole or in part in the price charged for Processing. All drawings and information relating to such tools and jigs remain the Company’s property and the copyright therein remains vested in the Company and the Customer undertakes that it will not copy or make use of such tools, jigs, drawings or information for the benefit of itself or any third party without the Company’s prior written consent.
15 Lien
The Company shall in respect of all sums due or owing from the Customer under the Contract or any other contract between the Customer and the Company have a general lien on all Goods and property of the Customer in the Company’s possession (notwithstanding that Processing of such Goods or some of them may have been paid for) and shall after the expiration of 14 days’ notice to the Customer be entitled to dispose of such Goods and property as it deems fit and apply the
proceeds towards such sums.
16 Confidential Information
16.1 All specifications, drawings, technical descriptions and details of Processing (hereinafter called “information”) submitted with the Company’s quotation or otherwise supplied to the Customer pursuant to the Contract are supplied in confidence. The Customer shall keep the information confidential and shall not (save as required by law or unless the same is already in the public domain other than as a result of the default of the Customer) disclose the same to any third party without the Company’s prior written consent and shall use the same only for the purposes of the Contract.
16.2 All inventions or new processes arising from the Contract and any applications for patents or similar protection, whether in the United Kingdom or elsewhere shall be the property of the Company.
16.3 Nothing in this Condition 16 shall prevent the Company from undertaking or offering to undertake for third parties any work or services similar to or designed to achieve the same results as the work or services provided under the Contract.
17 Termination
17.1 The Customer cannot terminate the Contract without the written consent of the Company which may be subject to such terms, as in the Company’s absolute discretion, recompense the Company for all loss it may suffer as a result of such termination.
17.2 The Company shall be entitled, without prejudice to any of its other rights, to terminate the Contract or any other contract with the Customer forthwith by notice to the Customer:
17.2.1 if the Customer (whether under the Contract or any other contract between the Customer and the Company) is overdue with any payment or commits any breach of contract which is incapable of remedy or which (if the same is capable of remedy) the Customer fails to remedy following the Company’s written notice to do so within the period specified in the said notice; or
17.2.2 if any distress or execution shall be levied on the Customer’s assets or if the Customer shall make or offer to make any arrangement or composition with creditors or commits an act of bankruptcy or if any petition or receiving order in bankruptcy or any administration order shall be presented or made against the Customer or, where the Customer is a limited company, any resolution or petition to wind up the same (other than for the purposes of reconstruction or amalgamation of a solvent company) shall be passed or an administration order made or if a receiver, manager, administrative receiver or administrator is appointed in respect of the Customer’s assets and undertaking or any part thereof or if the Customer ceases or suspends payment of any of its debts or is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; or
17.2.3 if the Company reasonably apprehends any of the events mentioned in Condition 17.2.2 above.
17.3 The Company shall without prejudice to its right to terminate the Contract be entitled to suspend further Processing of Goods under the Contract or any other contract between the Customer and the Company:
17.3.1 if any of the events mentioned in Condition 17.2 above occur; or
17.3.2 if and to the extent that the value of the Processing provided but not paid for exceeds (or if provided would exceed) the Customer’s credit limit whether or not advised to the Customer and whether or not payment is overdue.
17.4 Notwithstanding any termination or suspension in accordance with Conditions 17.2 or 17.3 above the Customer shall pay the Company for all work done up to and including the date of such suspension or termination and shall in addition indemnify the Company against any resulting loss damage or expense incurred by the Company in connection with such suspension or termination.
18 General
18.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company under this or any other Contract.
18.2 Nothing in the Contract shall create or be deemed to create a partnership between the parties.
18.3 The Contract contains all the provisions which the parties have agreed in relation to the subject matter of the Contract and supersede any prior written or oral agreements, representations or understandings between the parties. The Customer agrees that it has not been induced to enter into the Contract by a statement or promise which it does not contain save that the Contract shall not exclude any liability which the Company would otherwise have to the Customer in respect of any statements made fraudulently by the Company.
18.4 In the event of one or more of the provisions of the Contract being held by a competent authority to be invalid, illegal, or unenforceable, in whole or in part, the validity, legality or enforceability of the remaining provisions of the Contract and the remainder of the provision in question shall not be affected thereby.
18.5 All notices to be served by one party on the other must be in writing and shall be deemed duly delivered or served at the time of service if delivered personally and forty eight hours after posting if posted by first class or airmail pre-paid post in each case to the registered address, if applicable, or if not applicable the last known address of the other party.
18.6 No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right, power or remedy.
18.7 For the purpose of the Contracts (Rights of Third Parties) Act 1999, the Contract does not and is not intended to give any rights or any right to enforce any of its provisions to any person who is not a party to it.
18.8 The Contract shall be governed by and construed in accordance with the laws of England and Wales and the Customer submits to the exclusive jurisdiction of the English Courts.
Effective from January 2025
