These conditions of sale (“Conditions”) apply to all contracts between (1) the organisation on whose behalf these Conditions are signed below (the “Customer”) and (2) Quantum Profile Systems Ltd (a company registered in England and Wales with company number 04057656) (the “Company”) for the sale and purchase of the Company’s products, to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1. Definitions and interpretation
1.1In these Conditions:
“Contract” means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these conditions.
“Ex Works” has the meaning given in Incoterms 2010.
“Goods” means the goods to be manufactured by the Company for the Customer as set out in an accepted order placed by or on behalf of the Customer.
“Incoterms 2010” means the international rules for the interpretation of trade terms first published by the International Chamber of Commerce in 2010.
“Specification” means any specification for the relevant Goods, including any related designs or drawings, that is agreed in writing by the Customer and the Company.
1.2Where the words “include(s)” or “including” or “in particular”, or words of a similar nature, are used in this Contract, they are deemed to have the words “without limitation” following them, and are illustrative and shall not limit the sense of the words preceding them.
1.3For the purposes of clause 8.2, references to “Goods” shall be deemed to include Bespoke Tooling (as defined in clause 3.4 below)
2.1An order placed by or on behalf of the Customer in pursuance of any quotation (or otherwise) constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that each order it places with the Company is complete and accurate.
2.2No order in pursuance of any quotation or otherwise shall be binding on the Company unless and until such order is accepted by the Company and the Company’s written acknowledgement has been sent to the Customer.
2.3The Contract shall come into existence when the Company sends its written acknowledgement (whether by email or otherwise) of the relevant order to the Customer or (if earlier) begins to supply the Goods to fulfil the relevant order.
2.4The Company reserves the right to correct any clerical or typographical errors made by its employees or agents at any time.
3. Manufacture of Goods
3.1The Company shall manufacture the Goods to order using reasonable skill and care and in accordance with the relevant Specification.
3.2Goods manufactured in whole or in part to the Customer’s designs and/or specifications will be manufactured only with the understanding that the Customer shall defend, protect and hold the company harmless against all actions or suits at law or in equity and the Customer shall indemnify the Company from all liabilities, costs, expenses, damages, losses suffered or incurred by the Company in connection with any claim made against the Company arising out of the manufacture, sale and/or use of Goods so manufactured.
3.3Nothing in these Conditions shall operate to transfer ownership of any intellectual property rights or the rights in any technical know-how.
3.4Where the Company manufactures bespoke tooling pursuant to the Customer’s order (“Bespoke Tooling”), the Company shall submit a sample from the Bespoke Tooling for approval and if the Customer shall not express in writing approval or disapproval of such sample within 28 days after the same being submitted to the Customer, the Customer shall be deemed to have approved the same as submitted.
3.5Notwithstanding clause 7, the Company shall be entitled to raise invoices for the agreed price payable for the Bespoke Tooling (and the Customer shall pay such invoices) as follows:
3.5.11/3 of the agreed price payable shall be invoiced and payable upon acceptance by the Company of the order for the Bespoke Tooling placed by the Customer;
3.5.21/3 of the agreed price payable shall be invoiced and payable upon delivery of the sample referred to in clause 3.4; and
3.5.31/3 of the agreed price payable shall be invoiced and payable 30 days after the date of delivery of the sample referred to in clause 3.4.
3.6The Company shall not use Bespoke Tooling for any purpose other than for manufacturing Goods for the Customer without the Customer’s prior written consent, but shall be entitled to destroy any Bespoke Tooling which has not been used for a period of 3 years on giving the Customer at least 3 months’ notice in writing of its intentions so to do.
3.7Unless expressly agreed in writing to the contrary by the Company, title to any Bespoke Tooling shall remain with the Company (irrespective of whether the Customer makes a contribution towards or pays for all or a proportion of the costs of such Bespoke Tooling) and the Customer shall acquire no title to or interest of whatever nature in such Bespoke Tooling.
3.8The Company reserves the right to charge the Customer for unrecovered Bespoke Tooling development costs if the Bespoke Tooling is transferred to the Customer for any reason.
3.9If the Customer fails to call-off the specified projected volumes of Goods within the agreed time periods, or if no period has been agreed within a reasonable time, the Customer shall also pay to the Company the residual value of under-recovered Bespoke Tooling amortisation costs, such payment to be made within 30 days after the issue of an appropriate invoice by the Company.
3.10The Company shall be responsible for insuring the Bespoke Tooling and for undertaking the day-to-day maintenance of the Bespoke Tooling and for the costs associated with such maintenance other than costs of a capital nature. All costs and expenses incurred by the Company at the request of the Customer in carrying out any modifications or variations to Bespoke Tooling and all capital expenditure associated with the maintenance or replacement of Bespoke Tooling shall be paid for by the Customer.
3.11Title to the Bespoke Tooling shall automatically transfer to the Customer if the Company ceases to carry on business and in such circumstances the Customer shall be entitled to enter the Company’s premises to seize the Bespoke Tooling.
4.1Subject to any agreement in writing to the contrary, all quotations issued by the Company are provisional and are based on, inter alia, the cost of materials, labour, transport, import duties and levies, currency exchange rates and statutory obligations ruling at the date of the Company’s acceptance of the Customer’s order.
4.2The Company may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
4.2.1any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
4.2.2any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
4.2.3any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
4.3Unless otherwise agreed in writing (whether by email or otherwise), all prices are Ex Works and, in addition to the price payable for the Goods, the Customer shall be responsible for the payment of the charges for packaging, transport, insurance and any other charges in respect of which it is acknowledged in the accepted order as being payable by the Customer.
4.4All prices quoted are exclusive of VAT and the Customer shall pay any and all taxes, duties and other government charges (of whatever nature) payable in respect of the Goods.
4.5In no event shall the Customer be entitled to make any deduction from the price of any Goods in respect of any set-off or counter claim unless the Company agrees otherwise in writing.
5.1Unless otherwise agreed in writing by the Company, delivery shall take place Ex Works when the Company notifies the Customer that the Goods are ready for collection. Where the Company agrees to delivery otherwise than at the Company’s premises, the Company shall be entitled to vary the contract price to cover charges in respect of packaging, transport and insurance. Where the Company agrees to delivery directly to a third party nominated by the Customer, the Customer shall be responsible for providing the Company with the address of the third party. In no circumstances will the Company be liable for any loss, damage, or third party claims arising from any errors in the address of the third party provided by the Customer.
5.2The Company reserves the right to deliver by instalments in such quantities as the Company thinks fit. Where delivery of the Goods is made in instalments, each instalment shall be construed as constituting a separate Contract to which all provisions of the Conditions shall (with any necessary alterations) apply. Late delivery of any instalments shall not entitle the Customer to refuse to accept subsequent instalments.
5.3The Customer shall accept delivery of the Goods at the time and point of delivery in accordance with these Conditions and the Customer shall reimburse the Company for any costs or expenses (including any re-delivery and storage costs) incurred by the Company as a result of the Customer failing to accept delivery or failing to provide the Company with such documentation as it shall require in order to effect delivery of the Goods.
5.4The Customer shall be obliged to accept such quantity of Goods as is stipulated in the Customer’s order but the Company shall be entitled to deliver ten per cent (or such other amount as is agreed in writing with the Customer) more or less than the stipulated quantity if it wishes.
5.5While the Company will use its reasonable endeavours to deliver the Goods by any date or within any period agreed with the Customer, such dates and periods are estimates only and the Company will not be liable for any failure to deliver those Goods by such a date or within such period. Moreover, the Company shall be entitled to defer delivery of any Goods until any monies due from the Customer have been received. Time of delivery shall not be of the essence of the Contract.
5.6Where Goods are delivered by the Company to the Customer in the Company’s stillages the Customer must at the Company’s request return the stillages to the Company in the same condition as they were received within the period agreed in writing with the Company and in default of any agreement no later than three months from delivery. The Customer shall pay all freight and/or carrier’s costs incurred and shall indemnify the Company against all costs, expenses and charges incurred in replacing or repairing stillages lost or damaged.
6.1The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Company, the Customer shall make those licences and consents available to the Company prior to the relevant shipment.
7.1The Company may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.2Unless otherwise specified in writing by the Company:
7.2.1payment for all Goods shall be made by the Customer to be received by the Company not later than the end of the calendar month following the month in which the Company’s invoice is dated;
7.2.2time of payment shall be of the essence of the Contract;
7.2.3payment shall be made direct to the Company, unless both the Customer and the Company agree otherwise, and the Company's official receipt shall be the only acknowledged discharge of any debt;
7.2.4the Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
7.2.5no payment shall be deemed to have been received until the Company has received cleared funds;
7.2.6without prejudice to any other rights of the Company, interest will be payable on all overdue accounts at the rate per annum of 4 per cent. above the base rate from time to time of Barclays Bank plc calculated on a daily basis until payment is received and for the purposes of clauses 8 and 10 of these Conditions the full purchase price of the Goods shall include any interest payable hereunder; and
7.2.7payments received by the Company will, unless both the Customer and the Company agree otherwise, be appropriated to outstanding invoices in chronological order.
7.3The Company may at its discretion at any stage require full or partial payment of the price prior to delivery of the Goods or the provision of security for payment (including an irrevocable letter of credit confirmed by a UK clearing bank acceptable to the Company) by the Customer in a form acceptable to the Company.
7.4Where the Company has notified the Customer that it has reserved manufacturing capacity for the Customer and otherwise than due to the Company’s default the Customer fails to call-off the specified projected volumes of Goods within the agreed time periods or, if none, within a reasonable time and in any event if the projected volumes are delayed for more than 12 months otherwise than due to the Company’s default, the Company reserves the right to levy and the Customer shall pay within 30 days after the issue of an appropriate invoice such charges as shall compensate the Company for the losses, damages and costs incurred by the Company as a result of such failure including costs to cover the recovery of capital expenditure incurred by the Company in anticipation of the Customer’s projected requirements.
7.5Where unit selling prices of Goods have been set by the Company on the basis of projected volume requirements supplied by the Customer, if the actual volumes called off by the Customer are materially less than projected volumes, the Company shall be entitled to increase the unit price to counter the shortfall in volumes to date and/or projected shortfall. At its option, instead of recovery by amortisation, the Company shall be entitled to immediate payment of such amount as shall compensate the Company for any loss, damage or expense incurred by the Company resulting from the shortfall in volumes, such payment to be made within 30 days of issue of an appropriate invoice.
7.6In the event the Customer notifies the Company in writing that it wishes to change or modify the design for any Goods, the Customer undertakes to pay the Company for all finished stocks of such Goods already manufactured by or on behalf of the Company prior to receipt of such notification, such payment to be made within 30 days of the issue of an appropriate invoice.
8. Breach and Cancellation
8.1In the event any of the following events occurs or in the reasonable opinion of the Company is likely to occur:
8.1.1the Customer commits any breach of its obligations under the Contract including its obligation to make any payment; or
8.1.2the Customer (or where the Customer is a partnership any partner thereof) appears to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or makes any voluntary arrangements within the scope of the Insolvency Act 1986 or has an administrative receiver or a receiver and manager appointed of the whole or any part of its undertaking property or assets or has a petition presented, an order made or a resolution passed for the winding up of the Customer or for the appointment of an administrator thereof;
the Company may (without prejudice to any other rights or remedies it may have against the Customer) forthwith suspend further performance of the Contract or cancel any outstanding delivery or stop any Goods in transit or by notice in writing to the Customer terminate the Contract as it thinks fit.
8.2Notwithstanding the suspension or termination of any Contract, the Customer shall pay the Company in accordance with the Contract for all Goods despatched by the Company prior thereto and shall indemnify the Company against any claim, cost, loss, liability or expense incurred (whether directly or indirectly) by the Company in connection with the Contract. Such losses shall be deemed to include loss of profit, liabilities and expenses in connection with raw materials and tooling obtained or produced for the purposes of the Contract and the cost of labour, any materials or components purchased by the Company for use in manufacturing the Goods but which the Company will be unable to use for other customers and overhead expenses reasonably attributable to the Contract.
8.3Subject to clause 8.4 below, cancellation by the Customer of any order for Goods will only be accepted at the discretion of the Company and in any event on condition that the Customer indemnifies the Company against any costs or expenses incurred (whether directly or indirectly) by the Company up to the date of cancellation and all loss or damage (of whatever nature) resulting to the Company by reason of such cancellation. Acceptance of such cancellation will only be binding on the Company if notified to the Customer in writing.
8.4The Customer may terminate the Contract without liability to the Company immediately on giving notice to the Company if the delivery of the Goods is delayed, hindered or prevented by a Force Majeure Event (as defined in clause 13.1) for a period in excess of 60 days.
9.1The Company shall not be liable for any damage in transit, shortage of delivery or loss of Goods unless the Customer gives to the Company written notice of such damage, shortage or loss with reasonable particulars thereof within 7 days after receipt of the Goods or (in the case of total loss) of receipt of the relevant invoice or other notification of despatch and it shall be a condition precedent to any such liability that the Customer returns the damaged Goods to the Company carriage paid within 7 days after such receipt.
9.2The Company shall incur no liability for any defect in or failure of Goods supplied or work done under any Contract or for any error in any weight, dimension, capacity, performance or other description which has formed a representation or is part of a Contract to the extent that:
9.2.1 any Goods were repaired, adjusted or altered by anyone other than the Company without the Company’s prior written consent or were installed, maintained or operated other than in strict accordance with the Company’s instructions and product literature; or
9.2.2the defect complained of results from faulty designs, information or materials supplied by the Customer.
9.3Without prejudice to clause 9.2, the Company shall incur no liability for any defect in or failure of Goods supplied or work done under any Contract or for any error in any weight, dimension, capacity, performance or other description which has formed a representation or is part of a Contract unless:
9.3.1the Customer gives to the Company reasonable written notice of the defect, failure or error within 28 days after delivery to the Customer; and
9.3.2the Customer, at the Company’s request, either returns the Goods to the Company carriage paid or allows the Company’s representatives to inspect them.
9.4In no event shall the Company’s liability in respect of any loss or damage (of whatever nature) suffered or incurred by the Customer (whether arising under contract, in tort or otherwise) exceed the price of the Goods in respect of which the Customer suffered or incurred such loss or damage.
9.5In no event shall the Company be liable to the Customer for any special, indirect or consequential loss or damage (whether arising under contract, in tort or otherwise) suffered or incurred by the Customer or for loss of profits, receipts or anticipated savings.
9.6All Goods sold by the Company are supplied with the benefit of the terms implied by section 12 of the Sale of Goods Act 1979. Subject thereto, and whether or not the Contract is a contract of sale, all other conditions, warranties and other terms express or implied, statutory or otherwise are expressly excluded, save insofar as contained in these Conditions or as otherwise expressly agreed by the Company in writing.
9.7The Customer shall not be entitled to rely on and the Company excludes all liability (howsoever occurring) for any oral statement or representations (other than those that are made fraudulently) by the Company or by the Company’s employees, agents or servants.
9.8Nothing in these Conditions shall exclude or limit either party’s liability in respect of death or personal injury caused by the negligence of that party or its employees, agents or contractors.
10. Property and Risk
10.1 The risk in the all Goods shall pass to the Customer:
10.1.1 in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection; and
10.1.2in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery to the Customer or nominated third party or, if the Customer or nominated third party wrongfully fails to accept delivery of the Goods, the time when the Company has tendered delivery of the Goods.
The Customer shall from that date maintain appropriate insurance against all usual risks and shall ensure that the Company’s interest is noted on such policy of insurance.
10.2Title to and property in all Goods shall remain vested in the Company (notwithstanding their delivery and the passing of the risk therein to the Customer) until payment in full for all the Goods has been received by the Company; and all other sums due from the Customer to the Company on any other account or pursuant to any other Contract have been received in full and until such payment is received the Customer shall hold the Goods as bailee on behalf of and in a fiduciary capacity for the Company.
10.3Until title to the Goods passes to the Customer the following provisions shall apply:
10.3.1the Company may at any time without prior notice to the Customer repossess and resell the Goods if any of the events specified in clause 8.1 occurs or if any sum due from the Customer to the Company under the Contract or on any other account or pursuant to any other Contract is not paid by the due date for payment. For the purpose of exercising its rights under this sub-paragraph the Company, its employees or agents together with any vehicles considered by the Company to be necessary shall be entitled at any time without prior notice to the Customer to free and unrestricted entry upon and access to the Customer’s premises and/or other locations where any of the Goods are situated;
10.3.2the Customer shall store the Goods in a proper manner in conditions which adequately protect and preserve them without charge to the Company and shall ensure that they are stored separately and are clearly identified as belonging to the Company. The Company and its authorised representatives shall be entitled to examine the Goods in storage at any time during normal business hours and upon giving the Customer reasonable notice of its intention to do so and to enter upon any premises owned or occupied or access to which is controlled by the Customer for that purpose. If the Customer sells (or uses within a building) the Goods before they have been paid for in full the Company shall hold the payments received in connection with such sale or use of the Goods on trust for the Company in a separate account until any sum owing to the Company has been discharged from such proceeds;
10.3.3the Company shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that title to and property in the Goods has not passed to the Customer.
10.4The rights and remedies conferred upon the Company by this clause 10 are in addition to and shall not in any way prejudice, limit or restrict any other rights or remedies of the Company.
11.1The Customer shall (and shall ensure that any third party to whom any Goods may subsequently be supplied) comply with all instructions of the Company in relation to the use of the Goods, and the Customer shall keep the Company fully and effectively indemnified against all costs, claims, demands, expenses and liabilities (of whatsoever nature and arising directly or indirectly, including, without prejudice to the generality of the foregoing, claims for damage to property and consequential loss (including loss of profit)) which may be made against the Company or which the Company may sustain, pay or incur arising out of or in connection with the use of the Goods where the Customer has in any way breached the terms of this agreement or has been negligent.
12. Product Application and Fitting
12.1Recommended fitting instructions for QPSL products (such as the Goods) are provided by the Company in brochures, leaflets and data sheets.
12.2These fitting instructions have been prepared by the Company using reasonable care and skill. Due to the variety of conditions and locations in which the Goods may be fitted, these fitting instructions are intended as guidance only and the Company cannot accept any liability for defective fitting.
12.3The Company shall not be liable for any defective fitting of the products arising out of the acts, omissions, negligence or default of the fitter, its servants or agents including in particular any failure by the fitter to comply with any recommendations of the Company as to the fitting of the products, including these instructions.
12.4Nothing in the fitting instructions shall have the effect of excluding or restricting the liability of the Company for death or personal injury resulting from its negligence (as stated in clause 9.8 above).
13. Force Majeure
13.1Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
13.2Where a Force Majeure Event occurs, the party delayed in performing its obligations as a result of the relevant Force Majeure Event shall be entitled to extend the time or times for delivery or otherwise performing such obligations by a period equivalent to that during which such delivery or performance has been prevented by the relevant Force Majeure Event.
14.2The information the Company collects and how it is used
14.1.1 To register a customer account and deliver requested services
i) Customer name, business name and address and post code.
ii) job title, telephone number and email addresses of people with responsibility for business decision making, finance, order processing, sales, operations
14.2.2This information will be used to process orders, identify delivery points, provide order confirmations, share information about orders and services and to determine which services are available for Customer’s area
14.3Access to Customer information and correction
14.3.1The Customer has the right to request a copy of the information that the Company holds about it. To make a request for a copy of some or all of your personal information please email [email protected] or write to us at Quantum House, Salmon Fields, Royton, Oldham OL2 6JG.
15.1No failure or delay by the Company to exercise any right or power hereunder shall operate as a waiver thereof nor shall any partial exercise preclude any other or further exercise of any other right.
15.2The Company shall be freely entitled to assign any Contract or part thereof to another company within the same group of companies as the Company. For these purposes “group” shall mean any subsidiary or holding company of the Company (as each term is defined in the Companies Act 2006) and any subsidiary of any such holding company from time to time. The Company shall also be free to sub-contract any of its obligations under any Contract to any third party.
15.3 These conditions constitute the entire agreement between the Company and the Customer in respect of all contracts concluded between them for the supply of goods and services or the carrying out of work by the Company and supersede all previous proposals, representations, agreements and arrangements whether oral, written or implied between the Company and the Customer.
15.4If at any time one or more of these Conditions (or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted therefrom and the validity and/or enforceability of the remaining provisions of these Conditions shall in no way be affected or impaired thereby.
15.5Termination of any Contract for whatever reason shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any sum owing or to become owing to the other.
15.6The headings shall not affect the meaning or interpretation of these Conditions.
15.7 Any notice required or permitted to be given under these conditions shall be delivered by hand or sent by recorded delivery mail or by fax to the other party at its registered office, place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any such notice shall be deemed to have been received:
15.7.1if delivered personally, at the time of delivery;
15.7.2in the case of pre-paid recorded delivery or registered post, 48 hours from the date of ; and
15.7.3in the case of fax, at the time of transmission.
15.8Each Contract and any dispute or claim (including any non-contractual 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 laws of England and Wales.
15.9The Customer agrees irrevocably that it will submit to the non-exclusive jurisdiction of the courts of England and Wales to settle any dispute or claim (including any non-contractual dispute or claim) that arises out of or in connection with this Contract or its subject matter.
15.10Notwithstanding clause 14.9, the Company may take proceedings or seek remedies before the courts or any competent authority of any country for interim or interlocutory remedies in relation to any breach of Contract or these Conditions by the Customer.