1.1 Definitions. In these Conditions, the following definitions apply:
Carrs: Carrs Welding Technologies Ltd and Carrs Welding Products Limited, whose registered office address is at 2 Henson Park, Henson Way, Telford Way Industrial Estate, Kettering, Northamptonshire, NN16 8PX.
Charges: the charges payable by Customer to Carrs for the supply of the Services as set out in the Contract.
Conditions: these general conditions as amended from time to time in accordance with clause 11.8.
Contract: any contract between Carrs and Customer for the supply of the Services, incorporating these Conditions.
Customer: the person who purchases Services from Carrs.
Customer Materials: any materials, components or objects to be provided by or on behalf of Customer and worked, welded or otherwise processed by Carrs in the course of performing the Services.
Order: Customer’s order for the supply of Services, as set out in Customer’s purchase order or as communicated to Carrs by any conventional means.
Quotation: Carrs’ quotation or proposal document for the supply of the Services, as provided by Carrs to Customer.
Services: the services supplied by Carrs to Customer as described in the Quotation or otherwise agreed between the parties in writing.
Specification: the description or specification for the Services or Worked Materials set out in the Quotation or otherwise agreed in writing between Carrs and Customer.
Worked Materials: Customer Materials which have been worked, welded or otherwise processed by Carrs to the extent required by performance of the Services.
1.2 In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) any phrase introduced by the terms including, include, in particular or any similar expression, will be construed as illustrative and will not limit the sense of the words preceding those terms; and
(c) except where the context requires, the singular shall include the plural (and vice versa).
(d) a reference to writing or written includes e-mails.
2. BASIS OF CONTRACT
2.1 Any Quotation is only valid for a period of 30 days, unless withdrawn earlier by Carrs.
2.2 Any samples, descriptive matter or advertising issued by Carrs are for the sole purpose of giving an approximate idea of Carrs’ services. They will not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 The Order constitutes an offer by Customer to purchase Services in accordance with the Quotation and these Conditions. These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate in its Order. The Contract shall be formed:
(a) when Carrs accepts Customer’s Order in writing (provided that such Order does not contain any additional terms or terms which conflict with these Conditions); or
(b) if Customer’s Order contains any terms or conditions which conflict with these Conditions (and Carr’s acceptance of such Order under these Conditions is therefore deemed to be a counter-offer), when Customer first makes payment to Carrs, delivers or procures the delivery of Customer Materials to Carrs, accepts delivery of Worked Materials, or otherwise acts in any manner constituting acceptance of Carrs’ counter-offer or of these Conditions.
3. SUPPLY OF SERVICES
3.1 Carrs will use reasonable endeavours to supply the Services to Customer in accordance with the Specification in all material respects.
3.2 Carrs shall use all reasonable endeavours to meet any agreed performance date, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Carrs may make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Carrs will notify Customer in any such event.
3.4 Carrs may introduce third party suppliers of products or services related to the Services (including Customer Materials) to Customer. Carrs warrants that it will exercise reasonable skill and care in introducing such third parties but otherwise shall have no liability to Customer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, in relation to such third parties’ performance or non-performance.
4. CUSTOMER’S OBLIGATIONS
4.1 Customer will:
(a) co-operate with Carrs in all matters relating to the Services;
(b) provide Carrs with such information as Carrs may reasonably require in order to supply the Services, and ensure that such information is accurate;
(c) ensure that any equipment and/or hardware belonging to or furnished by Customer is properly installed, tested and maintained and is sufficient and suitable for the purpose of carrying out the Services and that any adjustments, which may be required in relation to the performance of the Services, are carried out;
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services to be provided to Customer; and
(e) deliver the Customer Materials to Carrs at Customer’s own cost by any agreed date and in accordance with any agreed specification for the Customer Materials (or, if no specification has been agreed, in accordance with any previous description by Customer of the Customer Materials).
4.2 If Carrs’ performance of any of Carrs’ obligations under the Contract is prevented or delayed by Customer’s act or omission or a failure by Customer to perform any relevant obligation (“Default”):
(a) Carrs may rely on the Default to relieve Carrs from the performance of any of Carrs’ obligations to the extent the Default prevents or delays Carrs’ performance; and
(b) Carrs will not be liable for any costs or losses sustained or incurred by Customer arising directly or indirectly from Carrs’ failure or delay to perform any of Carrs’ obligations.
4.3 Customer will indemnify Carrs against any losses, damages, costs or liabilities incurred or suffered by Carrs as a result of any Default.
5. CUSTOMER MATERIALS
5.1 Carrs will during the term of the Contract have in place and maintain insurance against all reasonable risks of loss of or damage to any Customer Materials or Worked Materials in Carrs’ possession or control. Such insurance shall cover claims only up to an aggregate value of £2000000. Subject to clause 9.1, Carrs’ total aggregate liability to Customer in relation to any loss or damage to Customer Materials or Worked Materials covered by Carrs’ insurance shall not in any circumstances exceed £2000000. Any additional cover must be taken out by Customer at its own expense.
5.2 Carrs will deliver the Worked Materials to Customer. Unless otherwise agreed in writing by Carrs, the delivery point shall be Carrs’ place of business and the Worked Materials shall be deemed to be delivered when Carrs notifies Customer that such Worked Materials are ready for collection.
5.3 If Carrs agrees to arrange transportation, carriage and/or insurance of Worked Materials on behalf of Customer, all costs, expenses and administration charges in connection therewith shall be invoiced to Customer and paid within thirty (30) days of the issue of an invoice for the same by Carrs unless otherwise specified by Carrs on the invoice. Unless otherwise advised Carrs may declare the full value of Worked Materials to any applicable transportation or carriage company at the time of shipment.
5.4 Carrs shall not in any circumstances have any liability to Customer for any loss of or damage to Worked Materials occurring during loading, transit or unloading.
5.5 Any dates specified by Carrs for delivery of Worked Materials are intended to be an estimate and time for delivery shall not be of the essence of the Contract.
5.6 If Customer fails to take or accept delivery of any Worked Materials when they are ready for delivery, or Carrs cannot deliver Worked Materials on time because Customer has not provided appropriate instructions, documents, or authorisations:
(a) risk in the Worked Materials shall pass to Customer (including for loss or damage caused by Carrs’ negligence);
(b) the Worked Materials shall be deemed to have been delivered; and
(c) Carrs may store the Worked Materials until delivery, and Customer shall be liable for all related costs and expenses (including storage and insurance).
6. CHANGES TO THE SERVICES
6.1 If Customer requests a change to the scope or execution of the Services, Carrs will, within a reasonable time, provide a written estimate to Customer of:
(a) any necessary variations to Carrs’ Charges or the Services arising from the change; and
(b) any other impact of the change on the Contract.
6.2 If Customer wishes Carrs to proceed with the change, Carrs has no obligation to do so unless and until Carrs has agreed with Customer in writing the necessary variations to the Charges, the Services and any other relevant terms of the Contract to take account of the change.
7. CHARGES AND PAYMENT
7.1 The Charges for the Services will be calculated and invoiced on the basis and at the times set out in the Quotation.
7.2 Customer will pay each invoice submitted by Carrs:
(a) within thirty (30) days of the date of invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Carrs,
and time for payment will be of the essence of the Contract.
7.3 All Charges are, unless otherwise stated, exclusive of VAT, which (where applicable) Customer will pay in addition against the provision of a valid VAT invoice.
7.4 Customer will pay all amounts due under the Contract in full without any deduction or withholding and may not assert any credit, set-off or counterclaim against Carrs except as required by law. Carrs may, without limiting Carrs’ other rights or remedies, set off any amount owing to Carrs by Customer against any amount payable by Carrs to Customer.
7.5 If Customer fails to make any payment due to Carrs under the Contract by the due date for payment, then Customer shall pay interest on the overdue amount at the rate of 8% per annum above the base rate of Santander Bank plc from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount and interest, whether before or after judgment.
7.6 Carrs will have, in addition to any other right or remedy available to it, a lien and power of sale over the Customer Materials, Worked Materials and all other property at its premises belonging to Customer (“Customer Property”) for the Charges and all other fees, costs and expenses charged under or in connection with the Contract or any other contract between Carrs and Customer or otherwise owed by Customer to Carrs. If any such sum remains unpaid (in full or in part) more than two months after it becomes due, Carrs may:
(a) retain the Customer Property in its possession until full payment is made; and
(b) dispose of the Customer Property in such manner and at such price as Carrs thinks fit on the expiry of fourteen (14) days’ notice to Customer of such intended disposal.
7.7 Carrs will apply the proceeds of any disposal under clause 7.6(b) in the following order:
(a) payment of disposal costs;
(b) payment of outstanding Charges and other fees, costs and expenses charged under or in connection with the Contract or any other contract between Carrs and Customer or otherwise owed by Customer to Carrs; and
(c) payment of any remainder to Customer.
8.1 Carrs warrants that (subject to the other provisions of these conditions):
(a) the Services will be performed with reasonable skill and care; and
(b) on delivery and for a period of six (6) months thereafter (the “Warranty Period”) the Worked Materials shall conform in all material respects to the Specification.
8.2 Subject to clauses 5.4 and 8.3, if any of the Services or Worked Materials do not conform with any of the warranties in clause 8.1 Carrs shall at its option re-perform such Services, repair such Worked Materials (or the defective part) or refund the Charges or the part thereof relating to such Services or Worked Materials. If Carrs complies with its obligations under this clause 8.2 it shall have no further liability in relation to the failure of the relevant Services or Worked Materials to comply with the applicable warranty.
8.3 Carrs shall not be liable for any breach of any of the warranties in clause 8.1:
(a) unless Customer gives written notice of such breach to Carrs during the applicable Warranty Period;
(b) unless Carrs is given a reasonable opportunity after receiving the notice of examining any relevant Worked Materials and Customer (if asked to do so by Carrs) returns such Worked Materials to Carrs’ place of business at Customer’s cost for the examination to take place there;
(c) if Customer makes any further use of the applicable Worked Materials after giving such notice; or
(d) in relation to any non-conformity arising in Worked Materials due to misuse, improper storage, damage caused in loading, shipping or unloading, or any other act or omission of Customer or any third party; or
(e) in relation to Worked Materials which have been further worked, processed or altered by any physical process by Customer or any third party subsequent to their delivery under the Contract.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions will limit or exclude Carrs’ liability for death or personal injury caused by negligence, for fraud, or for any other matter in relation to which Carrs’ liability cannot be limited or excluded by law.
9.2 Subject to clause 9.1, Carrs will under no circumstances whatever be liable to Customer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for any:
(a) loss of profits, loss of business, loss of income or revenue, depletion of goodwill or similar losses, loss of anticipated savings, or loss of use (in each case whether direct, indirect or consequential); or
(b) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses,
even if Carrs has been advised of the possibility of such damages or losses.
9.3 Subject to clauses 5.1 and 9.1, Carrs’ total aggregate liability to Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the amount of the Charges actually paid by Customer to Carrs during the six (6) months preceding the date on which the event giving rise to such liability occurred.
9.4 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.
10.1 Without limiting Carrs’ other rights or remedies, Carrs may terminate the Contract with immediate effect by giving written notice to Customer if:
(a) Customer commits a material breach of the Contract and (if the breach can be remedied) fails to remedy that breach within thirty (30) days of Carrs’ notice to Customer;
(b) Customer fails to pay any amount due under this Contract on the due date for payment; or
(c) Customer ceases to trade; suspends or threatens to suspend payment of Customer’s debts; is unable or deemed unable to pay Customer’s debts as they fall due or admits inability to pay Customer’s debts; is bankrupt or files for bankruptcy; enters into any compromise or arrangement with Customer’s creditors’ or is the subject of winding-up proceedings or the appointment of a receiver or administrator (or if a person becomes entitled to appoint a receiver or administrator over Customer’s assets); or if any event with equivalent effect takes place in relation to Customer.
10.2 Termination or cancellation of the Contract will not affect the accrued rights, remedies, and liabilities of the parties as at expiry or termination will not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Clauses 1, 4.3, 5.6, 7.5, 8, 9, 10.2, 10.3 and 11 of these Conditions will survive termination of the Contract.
11.1 Force majeure: Carrs will not be liable to Customer as a result of any delay or failure to perform Carrs’ obligations under the Contract as a result of a Force Majeure Event. For the purposes of the Contract, “Force Majeure Event” means an event beyond Carrs’ reasonable control such as industrial disputes, failures of utility services or transport networks, acts of God, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, fire, adverse weather conditions or default of suppliers or subcontractors.
11.2 Assignment and subcontracting: Carrs may subcontract or delegate in any manner any of Carrs’ obligations under the Contract to any third party or agent. Customer may not assign, transfer, charge, subcontract or deal in any other manner with any of Customer’s rights or obligations under the Contract.
11.3 Entire Agreement: The Contract constitutes the entire agreement between the parties in relation to its subject matter. Customer acknowledges that Customer has not relied on any statement, promise or representation made or given by Carrs or on Carrs’ behalf which is not set out in the Contract.
11.4 Notices: Notices under the Contract must be in writing and may be delivered to the receiving party by hand or pre-paid post to the registered office of the other party or to such other address or by such other means as shall be notified by the receiving party to the other.
11.5 Waiver: No waiver of any of Carrs’ rights under the Contract will be effective unless in writing, and will not be deemed to waive any other subsequent breach or default.
11.6 Severance: If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions (and part-provisions) of the Contract will not be affected.
11.7 Third parties: A person who is not a party to the Contract will not have any rights under or in connection with it under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
11.8 Variation: Any variation to the Contract will only be binding if agreed in writing by Carrs.
11.9 Governing law and jurisdiction: The Contract, and any claim arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims), will be governed by the law of England and Wales and subject to the exclusive jurisdiction of the courts of England and Wales.