POTTERIES POWDER COATING LIMITED

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).

1.2 Condition, schedule, and paragraph headings shall not affect the interpretation of these conditions.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 Words in the singular shall include the plural and vice versa.

1.5 A reference to writing or written includes faxes but not e-mail.

1.6 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.7 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.8 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

2. Application of Conditions

2.1 These Conditions shall:

• (a) apply to and be incorporated into the Contract; and
• (b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.

2.2 The Customer’s acceptance of a quotation for Services by the Supplier constitutes an offer by the Customer to purchase the Services specified in it on these Conditions.

2.3 No offer placed by the Customer shall be accepted by the Supplier other than:

• (a) by a written acknowledgement issued and executed by the Supplier; or
• (b) (if earlier) by the Supplier starting to provide the Services, when a contract for the supply and purchase of those Services on these conditions will be established.

2.4 Any quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2.

3. Commencement and Duration

3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date of acceptance by the Supplier of the Customer’s offer in accordance with condition 2.2.

3.2 The Services supplied under the Contract shall continue to be supplied until the Services have been completed or the Contract is terminated in accordance with clause 11.

4. Supplier’s Obligations

The Supplier shall use reasonable endeavours to provide the Services and to meet any performance dates agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence of the Contract.

5. Customer’s Obligations

5.1 The Customer shall:

• (a) co-operate with the Supplier in all matters relating to the Services;
• (b) provide, in a timely manner, such information as the Supplier may reasonably request and ensure that it is accurate in all material respects; and
• (c) acknowledge that risk in the Customer’s Goods remains with the Customer at all times, and that it is the sole responsibility of the Customer to maintain adequate insurance to cover any loss or damage to the Customer’s Goods whilst they are situated on the premises of the Supplier.

5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

6. Change Control

6.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.

7. Charges and Payment

7.1 The total price for the Services shall be the amount as agreed between the parties prior to commencement of the Services.

7.2 All charges for the Services shall be exclusive of VAT which the Supplier shall add to its invoices at the appropriate rate.

7.3 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of the date of issue and without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.

7.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:

• (a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
• (b) suspend all Services until payment has been made in full.

7.5 Time for payment shall be of the essence of the Contract.

7.6 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 7.6 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

8. Delivery

8.1 Unless agreed otherwise in advance by the parties, the Customer is responsible for delivery of the Customer’s Goods to the Supplier’s site.

8.2 Unless otherwise agreed in writing by the Supplier, delivery of the Finished Goods shall take place at the Supplier’s place of business.

8.3 The Customer shall take delivery of the Finished Goods within 7 days of the Supplier giving it notice that the Finished Goods are ready for delivery.

8.4 Subject to the other provisions of these conditions, the Supplier shall not be liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Finished Goods (even if caused by the Supplier’s negligence).

8.5 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Finished Goods on time because the Customer has not provided appropriate instructions or documents, the Supplier may store the Finished Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses.

9. Limitation of Liability

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION.

9.1 This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

• (a) any breach of the Contract;
• (b) any use made by the Customer of the Services, and
• (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

9.3 Nothing in these Conditions limits or excludes the liability of the Supplier:

• (a) for death or personal injury resulting from negligence; or
• (b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
• (c) for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.

9.4 Subject to condition 9.2 and condition 9.3:

• (a) the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
  • (i) loss of profits;
  • (ii) loss of business;
  • (iii) depletion of goodwill and/or similar losses;
  • (iv) loss of anticipated savings;
  • (v) loss of goods;
  • (vi) loss of contract;
  • (vii) loss of use;
  • (viii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
• (b) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.

10. Data Protection

The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier.

11. Termination

11.1 Subject to condition 11.3, the Contract shall terminate automatically upon acceptance of the Finished Goods in accordance with clause 13.

11.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this agreement without liability to the other immediately on giving notice to the other if:

• (a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
• (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
• (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
• (d) a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
• (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
• (f) the other party ceases, or threatens to cease, to trade; or
• (g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

11.3 On termination of the Contract for any reason:

• (a) the Customer shall pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable in accordance with clause 7.2;
• (b) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

12. Force Majeure

The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

13. Acceptance of Finished Goods

13.1 The Customer shall be deemed to have accepted the Finished Goods 72 hours following delivery unless:

• (a) The Customer gives notice of any defect in the Finished Goods to the Supplier within 7 days of the time when the Customer discovers or ought to have discovered the defect; and
• (b) the Supplier is given a reasonable opportunity after receiving such notice of examining such Finished Goods and the Customer returns them to the Supplier’s place of business for the examination to take place there.

13.2 Provided that the terms of clause 13.1 have been complied with, the Supplier shall rework any of the Finished Goods that do not conform to a reasonable standard and upon doing so shall have no further liability other than that stated in clause 9 above.

14. Variation

No variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.

15. Waiver

15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

15.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

16. Severance

16.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.

16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

17. Status of Pre-Contractual Statements

Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.

18. Assignment

18.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

18.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

19. Rights of Third Parties

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

20. Notices

Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 20 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery.

21. Governing Law and Jurisdiction

21.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.