STANDARD CONDITIONS OF CONTRACT FOR THE SUPPLY OF GOODS AND SERVICES BY 3DI PROCESS EQUIPMENT LTD TO A CUSTOMER

Definitions and interpretation in these Standard Terms and Conditions for the supply of Goods and services from 3Di Process Equipment Limited to a customer. The following definitions apply: –

1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

• Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
• Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
• Deliverables: the deliverables set out in the Supplier’s Quotation or Purchase Order.
• Goods: the goods (or any part of them) set out in the Supplier’s Quotation or Purchase Order.
• Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
• Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s quotation or Customer’s purchase order form.
• Services: the services, including valuation and the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
• Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
• Supplier: 3DI Process Equipment Limited registered in England and Wales with company number 04241566 whose registered office is Heron House, 39-41 Higher Bents Lane, Bredbury, Stockport, Cheshire, SK6 1EE

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Terms and Conditions.

2.2 The Order shall only be deemed to be accepted when the Supplier confirms the order in writing or verbally (or failing which the Supplier takes any steps to carry out the order) at which point and on which date the Contract incorporating these terms and conditions shall come into existence (Commencement Date).

2.3 The Contract 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 Supplier which is not set out in the Contract.

2.4 Any quotations, samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Goods and Services including the contents of the Supplier’s website, are issued for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

2.5 Any quotation given by the Supplier shall be subject to these terms and conditions, but shall not constitute an offer and unless previously withdrawn by the Supplier shall remain open for a period of 30 days from its date of issue.

2.6 The Supplier recommends that the customer carries out an onsite inspection of the Goods prior to any contract and the customer relies on his own inspection.

2.7 These Conditions apply to the Contract 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. For the avoidance of doubt, where the terms of these standard terms and conditions conflict with any other contract documents, these will prevail.

2.8 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

3. DEFECTIVE GOODS

3.1 All Goods are sold “as seen” and “as is” unless otherwise agreed in writing by the Supplier. Therefore, the Customer is under a duty to carry out whatever tests and inspections it deems necessary in order to ascertain whether the Goods are in a condition satisfactory to the Customer prior to purchase.

3.2 The Supplier takes no responsibility for the information provided to the Customer and gives no undertaking whatsoever as to its previous use or the suitability of the Goods for the purposes of the Customer and it is incumbent upon the Customer to ascertain in advance of purchasing the Goods that the Goods will meet its specific needs. The Customer must take particular care when intending to use the Goods for a purpose other than that for which it was originally manufactured to ensure that it will be both safe and feasible to do so; in such cases the original manufacturer or distributor should always be consulted.

3.3 The Customer should be aware that the Goods may have been modified from its original specification by a previous owner and the Customer should therefore conduct a thorough examination of the Goods to ensure it is fit for the intended purpose. If the Customer instructs the Supplier to make any modifications or repairs to the Goods it is the Customer’s responsibility to ensure that it meets the Customer’s specifications and requirements prior to delivery and installation.

3.4 The Customer should be aware that the Goods may bear or contain hazardous chemicals or other hazardous materials which may be hazardous to life, health or to property by reason of toxicity, flammability, explosiveness or for other similar or different reasons.

3.5 If the Customer believes that the Goods may have been damaged in transit it must inform the Supplier immediately upon receipt and confirm this in writing within 48 hours of receipt, failure to do so will invalidate any claim against the Supplier, or its agents.

3.6 Statutory inspection and certification of the Goods is the sole responsibility of the Customer prior to placing in service.

4. GOODS

4.1 The Goods are described in the Supplier’s documents and or on the Supplier’s website.

5. COLLECTION, DELIVERY AND EXPORT OF GOODS

5.1 The Supplier’s terms for the transport and shipment of Goods shall be in accordance with ICC Incoterms 2010 or future updates. Unless agreed otherwise, the Suppliers standard terms shall be “Ex Works”. Goods sold “Ex Works” is considered delivered when loaded on the first carrier.

5.2 The Customer shall collect the Goods from the Supplier’s storage facility or such other location as may be advised by the Supplier as soon as the Supplier has notified the Customer that the Goods are ready.

5.3 If required, the Supplier shall deliver the Goods to the customer at an extra charge which is also payable in full or in part prior to delivery and is exclusive of VAT as detailed on the quotation and/or customer’s Purchase Order. The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree. The Supplier reserves the right to withhold delivery of part or all of the Goods:
(a) if at the time when delivery is due there shall be any outstanding invoice issued by the Supplier to the Customer which has not been paid in full or
(b) upon occurrence of the Customer’s insolvency.

5.4 The Supplier reserves the right at any time prior to the delivery of the Goods to adjust the stated price to take into account any increase in the cost of the Goods due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increase in taxes and duties, and increases in labour, materials and other manufacturing costs;
(b) any requests by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer and failure by the Customer to give the Supplier adequate or accurate information or instructions.

5.5 The Customer shall only have the right to remove the Goods from the Supplier’s premises, or be entitled to delivery of the Goods if the Customer has paid all monies payable under this contract and performed all other obligations under this contract.

5.6 The Customer must at its own expense, unless otherwise agreed, remove the Goods from the Supplier’s premises on the agreed removal date, failing which the Supplier may charge the Customer all reasonable storage costs.

5.7 The Customer is responsible for the cost of all labour and plant for the removal of the Goods from the Supplier’s premises and will upon demand indemnify the Supplier for all expenses, losses, costs, injury or damage suffered in connection with the removal of the Goods howsoever caused.

5.8 If the Supplier is to deliver the Goods, the Customer will agree a delivery date and delivery address with the Supplier but time of delivery shall not be of the essence and the Supplier shall have no liability for any delivery delay.

5.9 If the Customer is collecting the Goods and exporting overseas using their own transport (either by road, sea, rail or air) the Supplier reserves the right to charge a deposit equal to that of VAT on the Goods. This deposit is refundable upon receipt of satisfactory documentation, supporting the removal of the Goods purchased. Evidence of export must be received within 90 days of invoice. Where satisfactory evidence is not provided, Goods will be subject to UK VAT at the standard rate and the deposit will not be refunded.

5.10 In the event that the Customer exports the Goods overseas, the Customer is responsible for ensuring (at their own costs) that they hold all necessary permits, licences and clearances for any Goods to be exported outside the United Kingdom.

5.11 If the Supplier is to export the Goods overseas, the Supplier will have satisfied its delivery obligations (including all necessary permits, licences and clearances for any Goods that is to be exported outside of the UK) on consignment of the Goods to the shipper for delivery to the port of destination (of which a bill of lading shall be determinative proof that it has been done);

5.12 In all other cases, consignment of the Goods to a reputable 3rd party carrier (of which a duly issued receipt shall be determinative proof that it has been done).

5.13 The Supplier reserves the right to subcontract freight forwarding and shipping services in part or whole and will not accept claims for breakages or in transit damage on the grounds of unsuitable securing or packing.

5.14 Costs associated with export packaging, container or flat rack stuffing and securing will be charged to the Customer, unless agreed otherwise.

5.15 Unless otherwise agreed in writing, insurance of the Goods during carriage and shipping is the Customer’s responsibility.

6. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on completion of payment.

6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods and delivery (if applicable).

7. SUPPLY OF SERVICES

7.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.

7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in any quotations or purchase orders, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

7.3 Any valuations provided to a customer are for the sole use and reliance or by the customer only and are estimates only based on the information available to the supplier at the time of valuation. All valuations are approximate only. The Supplier shall not be liable for any error or omission to the customer or any third party in carrying out such valuations. The Supplier shall not be liable for any reliance on any such valuations by any third parties howsoever occasioned.

8. CUSTOMER’S OBLIGATIONS

8.1 The Customer shall:

8.2 co-operate with the Supplier in all matters relating to the Services;

8.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;

8.4 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

9. CHARGES AND PAYMENT

9.1 The price for Goods shall be the price set out in the quotation or Purchase Order or on the Supplier’s website or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery. The price of the Goods is payable in full prior to deliver or collection and is exclusive of VAT and all costs and charges of packaging, insurance, transport of the Goods which shall be paid by the Customer when it pays for the Goods.

9.2 The charges for Services shall be on a time and materials basis. The charges shall be calculated in accordance with the Supplier’s standard rates, as set out in the quotation.

9.3 In respect of Goods, the Supplier shall invoice the Customer prior to delivery or collection of the goods. In respect of Services, the Supplier shall invoice the Customer as per any agreement between the Customer and the Supplier including any quotation or estimate.

9.4 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate set out in the Late Payment of Commercial Debts (interest) Act 1998 accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

9.5 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

10. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

10.2 Subject to clause 10.1, the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

10.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

11. TERMINATION

11.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

11.2 The Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing of the breach;]

11.3 The Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or [(being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

11.4 Without limiting its other rights or remedies, the Supplier may terminate the Contract:

11.5 by giving the Customer 1 months’ written notice;

11.6 with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

12. GENERAL

12.1 Force majeure: The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

12.2 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

12.3 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.