Titgemeyer UK Ltd Terms and Conditions of Sale June 2013
1.1 In this Agreement (unless the context otherwise requires), the following words and phrases shall have the following meanings:
1.1.1 "Agreement" means these Terms together with any document referred to, completed or to be completed in accordance with its provisions including, but not limited to, any applicable Order;
1.1.2 "Charges" means the charges payable by the Customer to the Company for the Products as set out in the Company’s Order Confirmation or the Company’s charges as at the date of delivery (whichever is the greater), or as otherwise agreed by the parties in writing, including, where applicable, any Tooling Charge;
1.1.3 "Company" means Titgemeyer (UK) Limited, a company incorporated in England and Wales under number 03003911 whose registered office is at A2 Link One Industrial Park, George Henry Road, Tipton, DY4 7BU;
1.1.4 "Customer" means the customer being the individual, firm, company or other person or entity set out in the Order;
1.1.5 “Estimated Delivery Date” means the estimated date on which an Order is to be delivered;
1.1.6 "Force Majeure Event" means any cause affecting the performance by a party of its obligations under this Agreement arising from acts, omissions, happenings or non-happenings beyond its reasonable control, including any act of God, fire, explosion, adverse weather conditions, flood, storm or earthquake, acts of terrorism, riot, civil commotion, strikes, labour disputes, war, or armed conflict, hostilities, civil disturbance, acts of government or regulatory bodies;
1.1.7 “Insolvency Event” where a party ceases to do business, becomes unable to pay its debts when they fall due, becomes insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or enters into liquidation whether compulsorily or voluntarily;
1.1.8 “Losses” means losses (including any direct, indirect or consequential losses, loss of profit and loss of reputation), claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands, legal and other professional costs (calculated on a full indemnity basis) and “Loss” shall be construed accordingly;
1.1.9 "Order” means an order for Products submitted by the Customer to the Company in accordance with Clause 2;
1.1.10 “Order Confirmation” means a written acceptance of the Order by the Company;
1.1.11 "Products" means the products set out in an Order to be supplied by the Company in accordance with the terms of this Agreement;
1.1.12 “Services” the services supplied by the Company to the Customer as provided for under the terms of this Agreement;
1.1.13 "Terms" means these Titgemeyer (UK) Limited - Terms and Conditions of Sale June 2013 from time to time;
1.1.14 “Tooling Charge” means an amount to be determined by the Company in respect of any applicable tooling of an Order pursuant to Clause 8; and
1.1.15 "VAT" means value added tax and includes any substituted or similar tax.
1.2 In this Agreement (unless the context otherwise requires):
1.2.1 the words "including", "include" and "in particular" and words of similar effect shall not be deemed to limit the general effect of the words which precede them;
1.2.2 reference to any agreement, contract, document or deed shall be construed as a reference to it as varied, supplemented or novated;
1.2.3 obligations undertaken by a party which comprises more than one person shall be deemed to be made by them jointly and severally;
1.2.4 words importing the singular shall include the plural and vice versa;
1.2.5 the headings to the Terms are not to affect the interpretation;
1.2.6 reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time and, in the case of a statute, includes any subordinate legislation made under that statute from time to time;
1.2.7 any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done;
1.2.8 references to a “party” shall be to either the Company or the Customer and references to the “parties” shall be to the Company and the Customer;
1.2.9 “delivery” shall be construed in the context of Ex Works (Incoterms 2010) delivery (or as otherwise agreed by the parties, in writing) and “deliver” shall be construed accordingly; and
1.2.10 words importing any one gender shall include either other gender.
1.3 Where the terms of this Agreement conflict in any way with or are inconsistent with the terms of any other document the following order of precedence shall apply:
1.3.1 these Terms;
1.3.2 any other document, including an Order, Order Confirmation, or specification.
2.1 These Terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted from the date the Company issues an Order Confirmation to the Customer, or the Products are delivered (if earlier) at which point the Agreement shall come into existence.
2.4 Without prejudice to the Customer’s statutory rights, subsequent to the Customer’s submission of an Order, the Customer shall in no circumstances be entitled to cancel any such Order without the prior written consent of the Company.
2.5 The Agreement constitutes the entire agreement between the parties. 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 Agreement.
2.6 Any quotation for the Products given by the Company shall not constitute an offer. Any quotation shall be valid for a period of 30 days only from its date of issue, provided that the Company has not previously withdrawn it.
2.7 The quantity and description of the Products shall be as set out in the Company’s quotation or Order Confirmation.
2.8 The Customer acknowledges:
2.8.1 all samples, drawings, descriptive matter, specifications and advertising produced or issued by the Company and any descriptions or illustrations (including any prices, weights measures, performance, capabilities, application suitability information and other data) contained in the Company’s catalogues, brochures or sales literature are issued or published for information only and are statements of opinion;
2.8.2 such documentation shall not form part of the Agreement; and
2.8.3 this Agreement and any quotation or Order is not, or deemed to be, a sale by sample.
3.1 Delivery of the Products shall be Ex Works (Incoterms 2010).
3.2 Unless the parties agree otherwise, the Order Confirmation may specify the Estimated Delivery Date. In the event that the Order Confirmation does not include an Estimated Delivery Date, delivery shall be within a reasonable time from the date of the Order Confirmation or receipt by the Company of the information and/or drawings required from the Customer in order to fulfil the Order, whichever is the later.
3.3 The Customer acknowledges that the Estimated Delivery Date shall be an estimate and approximation only and the Company gives no guarantee or warranty as to the date for delivery of the Products and that time shall not be of the essence in respect of delivery.
3.4 In the event that a delay in delivery of the Products is attributable to the Customer’s instructions, or lack of instructions, the Company reserves the right to increase the Charges to cover any Losses thereby incurred by the Company as a result of such delay.
3.5 Subject to the other provisions of these Terms, the Company shall not be liable for any Losses caused directly or indirectly by any delay in the delivery of the Products, whether by the Company and/or the Company’s agent or sub-contractor (even if caused by the Company’s, or its agent’s or sub-contractor’s, negligence), nor shall any delay entitle the Customer to terminate or rescind the Agreement, cancel any Order or to refuse to accept delivery of the Products or withhold all or any part of the Charges.
3.6 Without prejudice to Clause 3.4, if for any reason the Customer fails to accept delivery of any of the Products or the Company is unable to deliver the Products because the Customer has not provided appropriate instructions, documents, licences or authorisations:
3.6.1 the Products shall be deemed to have been delivered as at the intended date of delivery;
3.6.2 risk in the Products shall pass to the Customer as at the date of deemed delivery (including for loss or damage caused by the Company’s, or its agent’s or sub-contractor’s, negligence); and
3.6.3 the Company may store the Products until actual delivery and the Customer shall be liable for all related Losses (including, without limitation, storage and insurance).
3.7 The Customer shall provide at the delivery location and at its expense adequate and appropriate equipment and manual labour for loading and taking delivery of the Products.
3.8 The Company may deliver the Products by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Agreement.
3.9 Each instalment shall be a separate Agreement and no cancellation or termination of any one Agreement relating to an instalment shall entitlethe Customer to repudiate or cancel any other Agreement or instalment.
4.1 The Buyer is under a duty where reasonably possible to make an inspection of the Products at the time of delivery of such Products.
4.2 The quantity of any consignment of Products as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary within seven (7) days from the actual date of delivery of the Products.
4.3 Notwithstanding Clauses 4.1 and 4.2, in the event of non-delivery of Products or that the quantity of Products delivered do not correspond with recordings pursuant to Clause 4.1:
4.3.1 (even if caused by the Company’s, or its agent’s or subcontractor’s, negligence) the Company shall not be liable for the same (to the extent permitted under this Clause 4) unless the Customer gives written notice to the Company of the nondelivery or quantity discrepancy within seven (7) days from the date when the Products would in the ordinary course of events have been received;
4.3.2 subject to Clause 4.3.1, any liability of the Company for nondelivery shall be limited to replacing the Products within a reasonable time or issuing a credit note of the pro-rata Agreement rate against any invoice raised for such nondelivered
4.3.3 subject to Clause 4.3.1, in the event that the Company delivers to the Customer a quantity of Products up to ten percent (10%) more or less than the quantity set out in the applicable Order Confirmation the Customer shall not be entitled to object to or reject the Products or any of them delivered by reason of the surplus or shortfall and shall pay for such Products at the prorata Agreement rate.
5.1 Risk in the Products supplied to the Customer shall pass to the Customer on delivery.
5.2 Title in the Products supplied to the Customer shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
5.2.1 the Products; and
5.2.2 all other sums which are or which become due to the Company from the Customer on any account.
5.3 Until title of the Products has passed to the Customer, the Customer shall:
5.3.1 hold the Products on a fiduciary basis as the Company’s bailee;
5.3.2 store the Products (at no cost to the Company) separately from all other Products of the Customer or any third party in such a manner that they remain readily identifiable as the Company’s property;
5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
5.3.4 maintain the Products in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request, the Customer shall produce the policy of insurance to the Company.
5.4 The Customer’s right to possession of the Products shall terminate immediately if:
5.4.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the Court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge order (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any Court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
5.4.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Agreement or any other Agreement between the Company and the Customer, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or suffers an Insolvency Event, or a Customer ceases to trade; or
5.4.3 the Customer encumbers or in any way charges any of the Products.
5.5 The Company shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the Company.
5.6 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer’s
right to possession has terminated pursuant to Clause 5.4, to recover them.
5.7 On termination of the Agreement, howsoever caused, the Company’s (but not the Customer’s) rights contained in this Clause 5 will remain in effect.
6.1 The Company warrants that (subject to the other provisions of these Terms) on delivery, and for a period of six (6) months from the date of delivery, the Products shall:
6.1.1 conform in all material respects with their description and any applicable specification or description;
6.1.2 be free from material defects in design, material and workmanship; and
6.1.3 be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
6.2 Notwithstanding Clause 6.1, the Customer acknowledges and agrees that the Company is not aware of any particular purpose the Customer shall give to the Products and that the Company gives no warranty or representation as to the suitability or fitness of the Products for any particular purpose.
6.3 The Company shall not be liable for a breach of the warranty in Clause 6.1 unless:
6.3.1 the Customer gives written notice of the defect to the Company within seven (7) days of the time when the Customer discovers or ought to have discovered the defect and in any event within six (6) calendar months from the date of delivery; and
6.3.2 the Company is given a reasonable opportunity after receiving the notice to examine such Products and the Customer returns such Products to the Company’s place of business at the Customer’s cost for the examination to take place there.
6.4 The Company shall not be liable for a breach of the warranty in Clause 6.1 if:
6.4.1 the alleged defect resulted from damage in transit;
6.4.2 the Customer makes any further use of such Products after giving notice under Clause 6.3.1;
6.4.3 the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there is none) good trade practice;
6.4.4 the Customer alters or repairs the Products without the written consent of the Company;
6.4.5 the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer;
6.4.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6.4.7 the Products differ from their description and/or specification as a result of changes made to ensure they comply with applicable statutory and/or regulatory standards of England and Wales.
6.5 The warranty set out in this Clause 6 shall be limited to claims relating to defects caused by faulty design, manufacture, materials or workmanship of the Products and shall in no circumstances extend to defects caused by abnormal use, misuse or neglect of the Products.
6.6 The Customer acknowledges and agrees that the Company shall not be liable for any loss or damage to the Products and/or Losses incurred in connection with loss or damage of the Products while in transit (if returned pursuant to this Clause 6) and the same shall be borne by the Customer.
6.7 Subject to Clauses 6.2, 6.4, and 6.8, if any of the Products do not conform with the warranty in Clause 6.1, the Company will repair or at its option replace free of charge the non-compliant Products which are returned to the Company by the Customer and will refund any carriage paid for such return. This Clause 6.7 sets out the Customer’s sole and exclusive remedy in respect of any breach of the warranty at Clause 6.1.
6.8 It is a condition precedent to any obligation of the Company under this Clause 6 that the Customer shall duly have paid all sums due and payable by it to the Company, including the Charges.
7.1 Unless otherwise agreed by the parties in writing, the Charges shall be exclusive of:
7.1.1 VAT or other sales tax or duty applicable from time to time;
7.1.2 any and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Customer shall pay in addition to the Charges.
7.2 Unless otherwise agreed by the parties, in writing, the Customer shall pay each and all invoices submitted to it by the Company, in full and clear funds no later than thirty (30) days from the end of the month to which the applicable invoice relates.
7.3 For this purpose time for payment shall be of the essence of the Agreement.
7.4 All payments payable to the Company under the Agreement shall become due immediately on its termination notwithstanding any other provision.
7.5 The Customer shall make all payments due under the Agreement in full without any deduction whether by way of withholding, set-off, counter-claim, discount, abatement or otherwise, for any reason whatsoever unless the Customer has a valid Court Order requiring an amount equal to such deduction to be paid by the Company to the Customer.
7.6 The Company reserves the right to suspend its performance under or terminate this Agreement in the event the Customer breaches this Clause 7.
7.7 The Company reserves the right to charge interest at the rate of two percent (2%) per calendar month on any and all amount overdue. Interest shall be payable from the date payment is due to the date of actual payment in full and such interest charge to be appointed on a daily basis.
8.1 In the event that in the completion of an Order the Company produces or sources tools especially in order to produce the Products to the Customer’s specification, pattern or design or to fulfil an Order the Company reserves the right to charge the Customer a Tooling Charge.
8.2 Unless otherwise agreed in writing, the tools procured or sourced pursuant to Clause 8.1 will remain the absolute property of the Company and may be retained in its possession.
9.1 Copyright in all designs prepared by the Company remains with the Company at all times and such designs may not be copied or reproduced without the Company’s written permission.
9.2 Where Products are made to the Customer’s specification, pattern or design the Customer undertakes full responsibility for the suitability and fitness of the specification, pattern or design and undertakes to indemnify and hold the Company harmless in the event that the same infringes (or is claimed to infringe) any patent, registered design, copyright and/or any other intellectual property rights of a third party and any Losses which it may incur by reason of any such infringement (or claimed infringement) in any country.
10.1 The Company does not accept any liability for any defects in the design of Products and no conditions, warranties or representations whether express or implied by statute or otherwise is given that the design of the Company’s Products are or that the Products themselves are suitable for any particular purpose or otherwise.
10.2 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
10.2.1 any breach of these Terms;
10.2.2 any use made or resale by the Customer of any of the Products, or of any product incorporating any of the Products; and
10.2.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.
10.3 Nothing in this Agreement excludes or limits the liability of the Company:
10.3.1 for death or personal injury caused by the Company’s negligence; or
10.3.2 under Section 2(3), Consumer Protection Act 1987; or
10.3.3 for any matter for which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from this Agreement.
10.5 Subject to Clauses 10.2 and 10.3:
10.5.1 the Company’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 Agreement shall be limited to the amount of the Charges paid by the Customer; and
10.5.2 the Company shall not be liable to the Customer for any indirect, consequential Losses; whatsoever (howsoever caused) which arise out of or in connection with the Agreement; and
10.5.3 the Company shall not be liable to the Customer for (whether direct, indirect or consequential) any loss of profit, loss of business, or depletion of goodwill or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Agreement.
If the Buyer suffers an Insolvency Event the Company may without liability or notice and without prejudice to any other rights determine this Agreement and all or any contract with the Buyer and the Buyer will bear all and any Losses incurred by the Company resulting from resale or scrapping of any Products manufactured by the Company pursuant to any Orders made by the Customer.
12.1 The Company shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed, or at the Company’s option it may terminate this Agreement.
12.2 The Company shall not be liable for any Losses, damage or injury of any kind whatsoever whether direct or indirect or consequential to any person or property caused by or arising out of or connected with the delay, failure or termination of this Agreement pursuant to Clause 12.1.
These Terms shall apply mutatis mutandis to any Products and/or Services provided by the Company by way of replacement, rectification or improvement under any of the Terms.
14.1 The Company shall:
14.1.1 comply with all laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; and
14.1.2 not engage in any activity, practice or conduct which would constitute an offence under Sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
15.1 This Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, sub-contract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
15.2 Any notice given by one party to the other under this Agreement must be in writing and may be delivered personally or by pre-paid first class post and in the case of post will be deemed to have been given two (2) working days after the date of posting and in the case of personal delivery on the same day. Notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in writing by one party to the other for the purpose of receiving notices after the date of this Agreement. Each party may specify by notice to the other a particular individual or office holder to whom any notices served on it are to be addressed, in which case a notice shall not be validly given unless so addressed.
15.3 The Company shall not make any:
15.3.1 public announcement concerning the transactions contemplated by this Agreement or any ancillary matter; or
15.3.2 reference to the other in any of its advertising or promotional material,
without the prior written approval of the Customer (not to be unreasonably withheld or delayed).
15.4 Notwithstanding Clause 15.3, the Company may make an announcement concerning this Agreement or any ancillary matter if:
15.4.1 required by law; or
15.4.2 required by any regulator, securities exchange or regulatory or governmental body to which that party is subject or submits or intends to submit, wherever situated.
15.5 Either party shall at the reasonable request and cost of the other use all reasonable endeavours to do or procure the doing of all such further acts and execute or procure the execution (as a deed or otherwise) of all such documents as may from time to time be necessary to give full effect to this Agreement.
15.6 If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
15.7 If any provision of this Agreement is so found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid and enforceable.
15.8 A person who is not party to this Agreement shall have no rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This Clause 15.8 does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
15.9 Nothing in this Agreement is intended to create a partnership or joint venture or legal relationship of any kind that would impose liability upon one party for the act or failure to act of the other party between the parties, or to authorise either party to act as agent for the other. Save where expressly stated in this Agreement, neither party shall have authority to make representations, act in the name or on behalf of or otherwise to bind the other.
15.10 The rights and remedies provided by this Agreement may be waived only in writing and specifically, and any failure to exercise or any delay in exercising a right or remedy by either party shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach of any of the terms of this Agreement or of a default under this Agreement shall not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement.
15.11 The rights and remedies provided by this Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies provided at law or in equity.
15.12 No variation of these Terms or this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.13 This Agreement, together with the documents referred to in it including, but not limited to, any applicable Order constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in them and supersedes cancels and nullifies any previous agreement between the parties relating to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination.
15.14 Each of the parties acknowledges and agrees that in entering into this Agreement and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other than as expressly set out in this Agreement as a warranty. The only remedy available to the Company in respect of any such statement, representation, warranty or understanding shall be for breach of contract under the terms of this Agreement.
15.15 Nothing in Clauses 15.13 or 15.14 shall operate to exclude any liability for fraud.
15.16 This Agreement and any matter arising from or in connection with it shall be governed by and construed in accordance with English law.
15.17 Each party irrevocably agrees to submit to the exclusive jurisdiction of the English courts over any claim or matter arising from or in connection with this Agreement or the legal relationships established by or in connection with this Agreement.