Terms and Conditions
1.1 The definitions and rules of interpretation in this condition shall apply in these Conditions:
Company: Conqueror Industries Limited;
Conditions: these Conditions of Supply;
Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential, including all specifications, drawings, technical descriptions and details of the Powder Coating Services submitted with the Company’s quotation or supplied to the Customer pursuant to the Contract;
Contract: any contract between the Company and the Customer for the supply of Powder Coating/Powder Coating Services, incorporating these Conditions;
Customer: the person, firm or company whose order for Powder Coating Services is accepted by the Company;
Goods: the goods and materials (including any part or parts of them) to which Powder Coating is to be applied by the Company pursuant to the Contract;
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;
Powder Coating/Powder Coating Services: the services to be performed and any associated materials to be provided by the Company for the Customer under the Contract (including any part or parts of them) including powder coating and any other associated processes and treatments to be applied by the Company to the Goods.
1.2 A reference to a particular law 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.
1.3 Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.
1.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 A reference to one gender includes a reference to the other gender.
1.7 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF CONDITIONS
2.1 Subject to any variation under Condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to the supply of all Powder Coating Services by the Company and any variation to these Conditions and any representations about any Powder Coating Services shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition 2.3 shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Unless previously withdrawn, the Company’s quotations are open for acceptance within 30 days from the date of the quotation.
2.5 Each order placed by the Customer for Powder Coating Services shall be deemed to be an offer by the Customer to purchase Powder Coating Services on and subject to these Conditions. The Contract shall come into effect on the Company’s acceptance of the Customer’s order.
2.6 Specifications, descriptions and illustrations contained in the Company’s catalogues, brochures and/or other materials in whatever form, are intended to give only a general idea of the Powder Coating Services concerned and the possible results of the Powder Coating Services. The Customer confirms and agrees that it has not relied upon the details and information contained in the Company’s catalogues, brochures or other materials unless it has sought and obtained written confirmation from the Company of their accuracy.
2.7 The Company may make any changes to the specification of the Powder Coating Services which is required from time to time to conform to any applicable safety, manufacturing or statutory requirements.
2.8 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, expenses, damages any other loss and/or liability suffered or incurred by the Company as a result of such cancellation or variation.
2.9 After examination of samples of the Goods the Company has the right to amend any quotation or decline to accept Goods for Powder Coating or not to proceed with any order, without any further liability to the Customer. Any amended quotation shall supersede the quotation it amends and shall be open for acceptance within 14 days from the date of the revised quotation unless previously withdrawn.
3.1 The Customer warrants and represents that it is either the owner of the Goods delivered to or accepted by the Company for Powder Coating or that it is authorised by such owner to accept these Conditions on such owner’s behalf.
4. CARRIAGE OF GOODS
4.1 If the price quoted by the Company includes transport of the Goods to and/or from the Company’s works the Company will arrange transport by whatever method the Company considers appropriate. The Goods will be at the Customer’s risk during any transport and loading and/or unloading to and from the Company’s works and the Customer will insure the Goods during all such times. The Company shall not be liable for the loss or destruction of or damage to Goods in transit whether as a result of its negligence or otherwise.
4.2 If the price quoted by the Company does not include transport of the Goods to and/or from the Company’s works, 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 5 days after notification by the Company that the Powder Coating Services have been completed. If the Goods are not collected within the specified period, the Company may despatch the Goods to the Customer at the Customer’s expense and risk and/or store the Goods at the Customer’s expense and risk until despatch and/or collection.
4.3 The Customer shall be responsible for the adequate packing of the Customer’s Goods in transit to and/or from the Company’s works to protect them 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 when returning 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 reasonably possible these will be returned to the Customer with the Goods.
4.4 The Customer shall be responsible at its own cost for all arrangements to load and unload the Goods when collected from and/or delivered to the Customer.
5.1 The price of the Powder Coating Services shall be the price quoted to the Customer in the Company’s quotation.
5.2 Unless otherwise stated in writing by the Company, prices are quoted exclusive of VAT, for which the Customer will be additionally liable.
5.3 Without prejudice to Condition 2.9, the Company may, by giving notice to the Customer at any time up to receipt of all of the Goods by the Company for Powder Coating, increase any price quoted to reflect any increase in the cost and/or expense of undertaking the Powder Coating Services (including without limitation, of any materials to be applied and/or used).
5.4 In the event of suspension of the Powder Coating Services at the Customer’s request or because of the inadequacy or inaccuracy of the Customer’s instructions, any price quoted by the Company may be increased to cover any additional costs and/or expenses of the Company which arise as a result.
5.5 If the Customer does not indicate to the Company plainly and correctly the full details of the Goods, including the make, brand, and grade of Goods to which Powder Coating is to be applied and/or fails to give to the Company correct and complete instructions as to the processing required by the Customer (including the specification), the Customer shall be liable for any additional costs and/or expenses of the Company and any loss of profit, loss of business and/or loss of use suffered by the Company arising as a direct or indirect result.
5.6 When prices are quoted which include delivery to and/or collection of the Goods from any address outside the United Kingdom, any increase in insurance, packing or freight costs, import duty, local taxes or any other charges incidental to the delivery and/or collection of the Goods between the date of the Contract and the date of delivery and/or collection shall be paid in each case by the Customer.
5.7 The Customer shall be liable for all costs, charges and expenses whatsoever in connection with the opening, confirmation, negotiation and operation of any letter of credit and in respect of the transfer of cash to the Company and the release of any shipping documents.
6. UNSUITABILITY OF GOODS FOR POWDER COATING
6.1 It shall be the Customer’s responsibility to ensure that the Goods are suitable for Powder Coating. However, if at any stage the Company in its sole discretion considers that the Goods are unsuitable for Powder Coating 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 the performance of the Powder Coating Services immediately. The Company shall notify the Customer of the Company’s outstanding charges in respect of Powder Coating carried out up to and including the date of such discontinuance and the Customer shall pay the same within 30 days of the date of such notification. Unless the Company agrees in writing 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 Powder Coating Services. The Company shall have no liability to the Customer on any discontinuance as aforesaid and the Customer shall have no further recourse against the Company under the Contract.
7. TIME OF PERFORMANCE
7.1 Any times quoted by the Company for performance of the Contract are estimates only. The Company shall not be liable for any loss (including loss of profit, costs, damages or expenses) arising directly or indirectly out of any delay in delivery or failure to complete the Contract within such time, even if caused by the Company’s negligence and time shall not be of the essence. Such times quoted shall run from the later of receipt by the Company of the Goods, or all information required by the Company in order to carry out the Powder Coating Services. In any event, the time for performance shall be extended by a reasonable period if performance of the Powder Coating Services is delayed by the nature of or lack of instructions from the Customer.
7.2 Without prejudice to Condition 7.1, the Customer shall have no right to reject the Powder Coating Services and shall have no right to rescind the Contract for late performance unless the time quoted by the Company for performance has passed and the Customer has served on the Company a written notice requiring the Contract to be performed and giving the Company not less than 14 days in which to do so and the notice has not been complied with.
8.1 The Company may sub-contract, assign and/or delegate the whole or any part of the Powder Coating Services (unless specifically agreed otherwise with the Customer in writing at or prior to the time the Contract is made). The Company may also store all or any part of the Goods at premises other than the Company’s works.
9. FORCE MAJEURE
9.1 If the Company is in any way prevented from and/or delayed in performing any of the Company’s obligations under the Contract by reason of an event such as an Act of God, decisions or actions of any Government or other authority, war or threat of war, fire, explosion, damage to or failure of plant and equipment, severe weather conditions, materials shortages or inadequacies, interruption or reduction in communications or means of transport, power or utilities failure, failure or delay in obtaining materials required for Powder Coating, any strikes, lock-outs or industrial disputes (whether or not involving the Company’s work force), accident or any other event or cause beyond the Company’s reasonable control, the Company shall be entitled at the Company’s absolute discretion partially or totally to suspend performance of its obligations under the Contract for a period equal to the delay caused by any such event or cause and shall be in no way liable for such failure and/or delay to perform its obligations under the Contract. If the period for performance of the Contract is extended as a result of such suspension by more than 90 days, the Contract may be terminated (as regards any Goods which have not undergone Powder Coating on the expiry of the aforesaid 90 day period) by either party 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 Powder Coating 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 all or any of its customers as a result of any such event or cause, the Company may allocate the available capacity for Powder Coating among such of its customers as the Company in its absolute discretion considers fit and without incurring any liability whatsoever to the Customer.
10.1 Unless otherwise specified in writing by the Company, payment in full in cash or cleared funds of all sums due under the Contract shall be made by the Customer to the Company in pounds sterling (or such other currency as the Company shall specify) within 30 days following the date of notification to the Customer that the Powder Coating Services have been completed or (if the price includes transport) of delivery of the Goods to the Customer following completion of the Powder Coating Services.
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 6% per annum above the base lending rate from time to time of Barclays Bank plc and shall accrue from day to day on all overdue payments (both before and after judgment) and the Company shall be entitled to charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer.
10.3 The Company reserves the right to claim interest at the rate set under section 6 of the Late Payment of Commercial Debts (Interest) Act 1998.
10.4 Any payment due under the Contract shall be made in full without any deduction whether by way of set off, counterclaim or otherwise, unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
10.5 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 will take place until a letter of credit has been opened and the Company is satisfied with all arrangements relating thereto. If for any reason the Bank is liable to make payment to the Company under any letter of credit established for that purpose and fails to do so, the Customer shall nevertheless remain liable to pay for the Powder Coating of the Goods.
10.6 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 and/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 may deem appropriate.
10.7 If payment in full is not made to the Company when due then the Company may withhold or suspend future or current performance of the Powder Coating Services.
11. WARRANTIES AND LIABILITY
11.1 This Condition 11 sets out the warranties provided by the Company and the liability accepted by the Company under the Contract.
11.2 The Company warrants that it will perform the Powder Coating Services with reasonable care and skill and in accordance in all material respects with any specification provided by the Customer to the Company under the Contract (subject to Condition 2.7) and that any materials applied to the Goods will, prior to their application to the Goods, correspond in all material respects with any description given by the Company under the Contract. This warranty will not apply if the Customer has not paid all sums due to the Company under the Contract on the due date for payment.
11.3 The warranty provided by the Company under Condition 11.2 above shall be the only warranty given by the Company under the Contract. All other conditions and warranties express or implied by statute, common law or otherwise, including all and any warranties as to the quality and/or fitness for purpose and/or effect on the Goods of any materials supplied as part of the Powder Coating Services, are excluded to the fullest extent permitted by law (save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982).
11.4 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 negligence) misrepresentation or otherwise including, without limitation, failure to provide colour matching between different batches, or for any damage to or loss of Goods as a result of Powder Coating by the Company:
(a) unless the methods employed in manufacturing the Goods prior to Powder Coating have taken into account the then current state of knowledge in the Powder Coating industry and the Customer has ensured that the Goods are made from the correct material and designed to appropriate engineering standards and have not been subject to any process or treatment by any person other than the Company which renders them unsuitable for Powder Coating and full information concerning the Goods as referred to in Condition 5.5 above has been supplied to the Company before the commencement of the Powder Coating Services; and
(b) unless the Customer checks the quantity of Goods delivered to or collected by the Customer forthwith and notifies the Company in writing of any alleged shortfall of, damage to, or defective Powder Coating of the Goods within 14 days thereafter in the case of defects which are reasonably obvious on inspection and in any event within 3 months of delivery; and
(c) unless the Customer affords the Company a reasonable opportunity to inspect the Goods and if so requested by the Company returns the Goods in relation to which the alleged defect has occurred to the Company’s works at the Customer’s expense for inspection to take place there; and
(d) unless the Customer has made no use of the Goods alleged to be damaged or the subject of allegedly defective Powder Coating after it discovers or ought reasonably to have discovered that they were damaged or were the subject of defective Powder Coating; or
(e) if the Goods have been subjected to misuse or have been improperly or incorrectly stored after delivery to or collection by the Customer.
11.5 The Company shall be under no obligation to ensure that any Goods are an exact match, or that one batch exactly matches another, whether the colour or finish is defined by reference to a sample or by description. Where a colour or finish is specified in the Contract by reference to a sample or description the Customer shall accept as complying with the Contract all Goods which are a commercial match with the sample or correspond with the description, as the case may be, and are a commercial match with each other in accordance with the standard generally recognised in the industry.
11.6 In view of the disparity between the value of the Goods undergoing Powder Coating and the charge for Powder Coating made by the Company, the liability of the Company for any breach of the warranty given in Condition 11.2 above and for any breach of the Contract or breach of statutory duty or tort (including negligence), misrepresentation or otherwise, is limited to three times the charge made for Powder Coating of the relevant Goods under the Contract. In the event of breach of the warranty given in Condition 11.2 above, the Company may at its sole option either refund the whole or the appropriate part of the charge for Powder Coating, or take such steps as the Company considers necessary so as to comply with the said warranty and this shall be the Company’s only liability in respect of such breach of warranty.
11.7 The Company shall not under any circumstances be liable for loss of profit, loss of use, loss of business or loss of goodwill including any indirect, special 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 a third party to whom the Customer may be liable.
11.8 Goods are and remain at all times whilst at 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 acknowledged by the Customer that the Company’s prices do not include insurance.
11.9 Nothing in these Conditions shall exclude or restrict the Company’s liability for death or personal injury due to the Company’s negligence or any liability which is due to the Company’s fraud and/or any other liability which it is not permitted to exclude or limit as a matter of law.
12.1 The Customer shall indemnify and keep indemnified the Company in full from and against all direct, indirect, special and/or consequential liability, loss, damages, injury, costs and expenses (including legal expenses on a full indemnity basis) awarded against or suffered or incurred or paid by the Company as a result (whether direct or indirect) of or in connection with:
(a) any claim that the use of any specification provided by the Customer and/or the Goods infringe the Intellectual Property Rights of any third party;
(b) any claim threatened or made against the Company in respect of any liability, loss, damage, cost or expense sustained or incurred by the Company’s employees or agents or by any customer or 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;
(c) any breach by the Customer of any of these Conditions; and/or
(d) any act or omission of the Customer or its employees, agents or sub-contractors in delivering and/or collecting the Goods (including loading and unloading).
13. JIGS OR TOOLING
13.1 Any jigs and/or tools made and/or procured by the Company are and shall remain the Company’s property notwithstanding that the cost thereof may be included in whole or in part in the price charged for Powder Coating. All drawings and information relating to and all and any Intellectual Property Rights in such tools and/or jigs shall, as and between the Company and the Customer, remain the Company’s sole and exclusive property and the Customer undertakes that it will not copy or make use of the same for the benefit of itself or any third party without the Company’s prior written consent.
14.1 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 over all Goods and property of the Customer in the Company’s possession (even if the Powder Coating 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.
15. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
15.1 The Customer and the Company agree that in the course of the Company supplying the Powder Coating Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Customer shall not use any Confidential Information for any purpose other than to carry out the Customer’s obligations to the Company. Nothing in this Condition 15.1 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 Powder Coating Services provided under the Contract.
15.2 The Customer acknowledges the Company’s ownership of all and any Intellectual Property Rights in any Confidential Information and in the Powder Coating Services provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. Without limitation, the Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. No Confidential Information may be copied or reproduced in whole or in part without the prior written consent of the Company. The Customer further acknowledges that all and any Intellectual Property Rights developed by the Company in performing the Powder Coating Services shall become vested and shall vest in the Company absolutely.
16.1 The rights granted under this Condition 16 are in addition to the rights to terminate the Contract granted elsewhere in these Conditions.
16.2 The Company shall be entitled to terminate the Contract immediately upon written notice to the Customer without prejudice to any of its other rights:
(a) if the Customer is late in making any payment due under the Contract or commits any breach of the Contract which is incapable of remedy (or which if the same be capable of remedy is not remedied within 14 days of the Company’s written notice to do so), or the Customer persistently breaches any one or more terms of the Contract; or
(b) if the Customer pledges or charges any materials which remain the property of the Company, or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim order under Section 252 Insolvency Act 1986 or has a Bankruptcy Petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction; or
(c) if the Customer reasonably appears to the Company to be about to take or suffer any of the actions in Condition 16.2 (b) above.
16.3 The Company shall, without prejudice to its right to terminate the Contract, be entitled to suspend further performance of the Powder Coating Services and/or withhold delivery of any undelivered Goods and stop any load in transit under the Contract or any other contract between the Customer and the Company:
(a) if any of the events mentioned in Condition 16.2 above occur; or
(b) if and to the extent that the value of the Goods which have undergone Powder Coating but are not paid for exceeds the Customer’s credit limit whether or not advised to the Customer and whether or not payment is overdue.
16.4 Notwithstanding any termination or suspension in accordance with Conditions 16.2 or 16.3, the Customer shall immediately pay the Company for all Powder Coating carried out up to and including the date of termination or suspension and shall in addition indemnify the Company against any resulting loss, damage or expense incurred by the Company in connection with such termination or suspension including the cost of any materials, plant or tools used or intended to be used therefor and the cost of labour and other overheads, including a percentage in respect of lost profits.
17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
17.2 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
17.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.6 Notices to be served hereunder shall be in writing and sent by post, e-mail or fax to either party at its last known address. Notices shall be deemed served by post 5 working days after posting and by e-mail or fax, on the next working day after sending.
17.7 The parties to the Contract do not intend that any 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.
17.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English Courts.