Clayton Thermal Processes Terms & Conditions - Processing PAGE IN PROCESSES OF BEING UPDATED
CLAYTON
THERMAL PROCESSES LIMITED
1
Definitions
1.1
In these Conditions the following words have the following meaning:-
"the Company"
means Clayton Thermal Processes Limited
"Components"
means the components or items on which the Company has agreed to provide
the Processing Services and shall not include any ancillary components left in
or upon the components by the Customer.
"the Contract"
means the contract between the Company and the Customer for the provision
of the Processing Services which is
made subject to these Conditions of Business.
"the Customer"
means the individual, firm, company or other party with whom the
Company contracts.
"Normal
Working Hours" means Monday to
Friday 08.00 hours to 17.00 hours.
"Processing
Services"
means cleaning and stripping and any other processing services and any
advice in connection therewith which the Company has agreed to provide to the
Customer under the Contract.
2
Services
2.1
The Company reserves the right in its sole discretion to discontinue the
Processing Services immediately if it considers that the Components are
unsuitable for the processes involved in providing such Services.
2.2
In that case the Company will notify the Customer immediately and the
Customer will be required to pay the Company at the rate specified in the
Contract in respect of all Processing Services performed by the Company up to
the date of discontinuance.
2.3
The Company has the right to amend any quotation or decline to accept
Components for the provision of Processing Services or to cancel the Contract
after examination of samples of the Components.
3
Customer's Responsibilities
3.1
The Customer shall ensure that the Components are suitable for the
provision of the Processing Services.
3.2
Unless otherwise agreed the Customer will at its cost deliver the
Components to the Company's premises and collect the Components from the
Company's premises once the Processing Services have been completed.
If the Processing Services are discontinued under clause 2.1 the Customer
will at its cost collect the Components from the Company's premises.
3.3
If the Customer fails to collect the Components from the Company's
premises on the date notified by the Company then the Company will be entitled
to charge the Customer for the costs of storage of the Components.
3.4
The Customer will ensure that the Components despatched to the Company
are suitably packaged having regard inter alia to their manufacturing
tolerances, quality and the inherent value of the Components in question.
The Company will use the same packaging in order to package the
Components for return to the Customer after completion of the Processing
Services. If any additional
packaging is required whether requested by the Customer or deemed necessary by
the Company in order to properly protect the Components then the Company will be
entitled to charge the Customer for the extra costs incurred.
The Company does not accept responsibility for the return of cases,
cartons or pallets but it will endeavour to return these with the Components
where possible.
4
Customer's Indemnity
4.1
The Customer will indemnify the Company in full forthwith upon demand
against any losses, damages, costs or expense whatsoever which the Company may
suffer or incur directly or indirectly as a result of:-
(a)
any condition or nature of the Components or other relevant details
relating to the Components which the Customer has not fully disclosed to the
Company and/or
(b)
inadequate or inaccurate instructions given by the Customer for the
processing of the Components.
4.2
The Customer shall indemnify the Company against all claims and demands
whatsoever and by whomever made in excess of the liability of the Company under
these Conditions.
5
Completion
5.1
Unless otherwise agreed, the Company will provide the Processing Services
at the Company's premises.
5.2
Although the Company will use its reasonable endeavours to complete the
Processing Services by any date or within any period agreed upon, such dates and
periods are estimates only, given in good faith and the Company will not be
liable for any failure to complete the Processing Services by such dates or
within such periods. Time for
completion of the Processing Services will not be of the essence of the
Contract.
5.3
If the Customer requests the Company to provide Processing Services
outside Normal Working Hours and the Company agrees to such a request, then the
Company will be entitled to levy an extra charge to the Customer to cover any
additional costs incurred.
5.4
The Company may return the Components to the Customer in instalments and
invoice the Customer as if each instalment comprised a separate Contract upon
the terms of these Conditions of Business.
6
Insurance
6.1
Risk in the Components will remain at all times with the Customer and the
Customer shall ensure that the Components is fully insured.
7
Warranties
7.1
Subject to clauses 7.2 and 7.3 the Company warrants to the Customer that
it will carry out the Processing Services with reasonable care and skill.
7.2
The warranty in clause 7.1 will not apply and the Company will have no
liability to the Customer whatsoever:-
(a)
if the Customer fails to comply with clauses 7.4 and 7.5
(b)
in respect of any defect in the Components or deficiency in the
Processing Services caused as a result of a failure by the Customer to comply
with its obligations under the Contract
(c)
in respect of any defect in the Components or deficiency in the
Processing Services caused as a result of the Customer supplying incomplete or
inaccurate information.
7.3
Any advice given by the Company as part of the Processing Services is
given by the Company in good faith and within the degree of information given by
the Customer. The Company accept no
liability for work so processed and subsequently found to be outside
specification or any way unsuitable for further manufacturing operations.
7.4
Following the collection of the Components from the Company after the
Processing Services have been completed the Customer will check the Components
including the quantity thereof and perform such tests as it considers necessary
to check that the Processing Services have been correctly carried out.
If following such checking and testing the Customer is of the opinion
that the Company is in breach of its warranty in clause 7.1 then it must notify
the Company immediately in writing and in any event within 7 days following
collection of the Components. The
Company will have no liability to the Customer for breach of the warranty unless
it is notified within the time periods specified in this clause.
7.5
The Customer will allow the Company's employees or agents access to its
premises to inspect the Components and if necessary to remove the Components
from the premises for further testing and analysis.
If the Company so requires the Customer will at its expense return the
Components to the Company's premises for further inspection.
7.6
Provided that the Customer complies with clauses 7.4 and 7.5 the Company
will as soon as reasonably practicable investigate any alleged breach of
warranty and if satisfied that a breach of warranty has occurred for which the
Company is responsible shall use its reasonable endeavours to remedy the breach
by carrying out such further Processing Services as may be reasonably necessary.
7.7
Except as otherwise stated in these Conditions of Business the Company
will have no other or further liability to the Customer whatsoever and whether
for breach of contract, negligence or otherwise in respect of any loss or damage
sustained by the Customer arising from or in connection with any failure of the
Company to comply with the terms of clause 7.1.
7.8
Where the Company performs such further Processing Services in accordance
with the foregoing provisions of this clause or otherwise then any time
specified for completion of the Processing Services under the Contract will be
extended for such period as the Company may reasonably require and the Company
will have no liability to the Customer for late completion of the Processing
Services.
7.9
All conditions, warranties and other terms express or implied statutory
or otherwise relating to the supply of the Processing Services are expressly
excluded except those which are contained in these Conditions of Business or
those which are otherwise agreed by the Company in writing as applying to the
Contract.
8
Title to the Components
8.1
The Customer warrants that it is either the owner of the Components or
that it is authorised by the owner of such Components to enter into this
Contract with the Company subject to these Terms of Business.
9
Sub-Contracting and Storage
9.1
The Company shall be entitled to sub-contract its obligations under this
Contract.
9.2
The Company shall be entitled to store the Components at premises other
than the Company's premises.
10
Lien
10.1
The Company will have a general lien on the Components in respect of all
sums due from the Customer whether under this Contract or any other contract
between the Customer and the Company.
Subject to giving the Customer 14 days notice the Company may sell the
Components and apply the proceeds of sale towards satisfaction of monies owed by
the Customer to the Company.
11
Payment
11.1
The price and payment terms in respect of the provision of the Processing
Services will be as agreed between the parties at the time the Contract is
entered into. In the absence of
agreement the price will be that in force at the date of despatch of the
Components by the Company.
11.2
All prices quoted are exclusive of VAT which will be charged (if
applicable) in addition at the rate applicable at the date of despatch.
11.3
The Company also reserves the right to make an additional charge in
respect of packing, insurance and carriage.
11.4
Unless otherwise agreed, all invoices issued by the Company to the
Customer for the provision of the Processing Services or any other item will be
paid by the Customer in full not later than the end of the month following the
month of the invoice. Time of
payment will be of the essence of the Contract.
11.5
Whatever the means of payment used, payment shall not be deemed to have
been effected until the Company's account has been fully and irrevocably
credited.
11.6
If the Customer fails to pay by the stipulated date, without prejudice to
any other rights of the Company, the Company will be entitled to charge interest
from the date payment was due. The
rate of interest will be 4% above Barclays Bank plc base rate in existence from
time to time.
12
Failure to Pay, Cancellation or Deferment
12.1
If there shall be an Intervening Event the Company may within a
reasonable time thereafter, stop any further Processing Services and treat the
Contract of which these Conditions form part as terminated, but without
prejudice to its rights to the full price in respect of the Processing Services
performed and damages for any loss suffered as a consequence of such
termination.
12.2
An Intervening Event shall be any of the following:-
(i)
failure by the Customer to make payment when it becomes due;
(ii)
breach by the Customer of any of the terms or conditions of the Contract;
(iii)
the Customer's proposal for or entry into any composition or arrangement
with creditors;
(iv)
the presentation against the Customer of any petition for a Bankruptcy
Order, Administration Order, Winding-up and/or similar process;
(v)
the appointment of an Administrative Receiver or Receiver in respect of
the business or any part of the assets of the Customer;
(vi)
the Company forming the reasonable opinion that the Customer has become
or is likely in the immediate future to become unable to pay its debt (adopting
in the case of a Company the definition of that term set out in Section 123 of
The Insolvency Act 1986).
12.3
Cancellation of the Contract by the Customer will only be accepted at the
discretion of the Company and in any event on condition that any costs or
expenses incurred by the Company up to the date of cancellation and all loss or
damage resulting to the Company by reason of such cancellation will be paid by
the Customer to the Company forthwith.
Acceptance of such cancellation will only be binding on the Company if in
writing and signed by a Director.
12.4
Any costs incurred by the Company due to the suspension or deferment of
any order by the Customer or in the event that the Customer defaults in
collecting or giving instructions for the delivery of the Components will be
payable by the Customer forthwith on demand.
13
Limitation of Liability
13.1
Subject to clause 13.2 the Company shall have no liability to the
Customer whatsoever in respect of any loss or damage suffered by the Customer
arising directly or indirectly from the negligence or wilful default of the
Company or the negligence or wilful default of the Company's employees or
agents.
13.2
Subject to clause 13.5 the Company accepts the following liability to the
Customer:-
(a)
unlimited liability for death or injury resulting from the negligence or
wilful default of the Customer or its employees or agents;
(b)
in the light of great disparity between the Company's charges for
Processing Services and the possible value of the Components, liability limited
to three times the Contract price or ,500 whichever is the least in respect of
any loss or damage to the Components sent for processing whether resulting from
the negligence or wilful default of the Company, its employees or agents, breach
of Contract or otherwise.
13.3
The Company's entire liability to the Customer in respect of any loss
suffered by the Customer arising from a breach of the Contract by the Company
shall be limited to damages of an amount equal to the total price payable by the
Customer to the Company under the Contract except:-
(a)
where the breach is a failure by the Company to supply Processing
Services which comply with clause 7.1 where liability is limited as set out in
clause 7; or
(b)
where the breach results in loss or damage to the Components where
liability is limited as set out in clause 13.2(b).
13.4
The Company will not be liable to the Customer under any circumstances
(and whether arising from breach of Contract or the negligence or wilful default
of the Company or its employees, agents or otherwise) for any product recall,
loss of production, loss of profits, loss of contracts or goodwill or any type
of consequential or special indirect or consequential loss suffered by the
Customer even if such loss was reasonably foreseeable or the Company had been
advised of the possibility of the Customer incurring the same.
13.5
If the Customer should require increased cover against the risk of damage
or loss in excess of the limitation set out in these Conditions, then provided
the Customer has notified the Company in writing prior to receipt of the
Components for Processing Services, the Company will be pleased to submit a
revised quotation.
14
Force Majeure
14.1
If the performance by the Company of the Contract shall be delayed by any
circumstances or conditions beyond the Company's control, the Company shall have
the right at the Company's option to:-
(a)
suspend further performance of the Contract until such time as the cause
of the delay shall no longer be present; or
(b)
be discharged from further performance of and liability under the
Contract and if the Company exercise such right, the Customer shall thereupon
pay the Contract price less a reasonable allowance for what has not been
performed by the Company.
15
Law and Arbitration
15.1
The Contract will be governed by English law.
15.2
All disputes arising shall be finally settled under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce.
Arbitration shall be in London before a single Arbitrator and the
proceedings shall be conducted in the English language.
16
Notices
16.1
Notices to be served hereunder shall be sent by post, telex or telefax
with the correct answer back code to each party at its last known address.
Notices shall be deemed served by post five working days after posting
and by telex or telefax when either is received.
17
General
17.1
No order in pursuance of any quotation or otherwise shall be binding on
the Company unless and until such order is accepted by the Company.
Any Contract made between the Company and the Customer shall be subject
to these conditions and no representative or agent of the Company has authority
to agree any terms or make any representations inconsistent with them or to
enter into any Contract except on the basis of them; any such term
representation or Contract will bind the Company only if in writing and signed
by a Director. If the Customer does
not accept any of the Company's Terms and Conditions as reasonable, the matter
should be raised in writing with a director of the Company with a view to
special terms being agreed.
17.2
Unless otherwise agreed in writing by the Company these conditions shall
apply to the exclusion of any terms and conditions stipulated or referred to by
the Customer in his order or pre-contract negotiations or any inconsistent terms
implied by law or trade custom, practice or course of dealing.
17.3
Any information data and other descriptions contained in the Company's
catalogues, price lists or other advertising material shall not form a
representation or be part of the Contract unless the Company has specifically
agreed in writing that they will form part of the Contract.
17.4
Where the Company has not given a written acknowledgement of the
Customer's order these conditions will nonetheless apply to the Contract
provided that the Customer has had prior notice of them.
17.5
The Company reserves the right to correct any clerical or typographical
errors made by its employees at any time.
17.6
If the provision of these Conditions is or becomes illegal, void or
unenforceable for any reason, the validity of the remaining provisions shall not
be effected.
17.7
The rights and remedies of the Company under the Contract shall not be
diminished, waived or extinguished by the granting of any indulgence,
forbearance or extension of time by the Company nor by any failure or delay by
the Company in asserting or exercising any such rights or remedies.