Your attention is particularly drawn to the provisions of clause 12 (Limitation of liability).
The following definitions and rules of interpretation apply in this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Contract: the contract between Karas Plating and You for the supply of Metal Finishing Services in accordance with these Conditions.
Delivery Location: has the meaning given in clause 4.5.
Finished Goods: the goods returned to You by Karas Plating following the provision of the Metal Finishing Services.
Force Majeure Event: has the meaning given to it in clause 15.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Karas Plating: Karas Plating Limited registered in England and Wales with company number 02970659.
Order: Your order for the supply of Metal Finishing Services, as set out in the Quotation.
Plating Services: the services supplied by Karas Plating to You as set out in the Quotation.
Quotation: the quotation for Metal Finishing Services provided by Karas Plating to You.
You: the person or entity who purchases the Metal Finishing Services from Karas Plating.
Your Goods: the goods supplied by You to Karas Plating for Metal Finishing Services.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted.
(c) A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes email.
2. Basis of contract
2.1. The Order constitutes an offer by You to purchase Metal Finishing Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when Karas Plating issues its Quotation or as otherwise agreed and You deliver Your Goods to Karas Plating at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions oral or written apply to the Contract to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4. Any Quotation given by Karas Plating is only valid for a period of 30 days from its date of issue.
2.5. Any changes required to a Quotation must be requested prior to the commencement of the Metal Finishing Services and are only accepted upon the issuing of an amended Quotation by Karas Plating.
3.1. The Finished Goods are described in Karas Plating’s Quotation.
3.2. You shall indemnify Karas Plating against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Karas Plating arising out of or in connection with any claim made against Karas Plating for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Karas Plating’s use of Your Goods. This clause 3.2 shall survive termination of the Contract.
3.3. Karas Plating reserves the right to amend the Quotation if required by any applicable statutory or regulatory requirement, and Karas Plating shall notify You in any such event.
4. Delivery of Customer’s Goods and Finished Goods
4.1. You shall be responsible for delivering Your Goods to Karas Plating unless otherwise expressly agreed in writing with Karas Plating.
4.2. You shall elect whether the Finished Goods are to be:
(a) Collected from Karas Plating by You; or
(b) Delivered by Karas Plating to You at Your expense.
4.3. If you fail to notify Karas Plating of Your election in accordance with clause 4.2 within 7 days of notice from Karas Plating that the Finished Goods are ready for collection or delivery Karas Plating shall deliver the Finished Goods to You at Your expense.
4.4. Karas Plating shall ensure that:
(a) each delivery of the Finished Goods is accompanied by a delivery note and, if the Order is being delivered by instalments, the outstanding balance of the Finished Goods remaining to be delivered; and
(b) it states clearly on the delivery note any requirement for You to return any packaging material to Karas Plating. You shall make any such packaging materials available for collection at such times as Karas Plating shall reasonably request. Where applicable returns of packaging materials shall be at Karas Plating’s expense.
4.5. If Karas Plating is to deliver the Finished Goods to You Karas Plating shall deliver the Finished Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Karas Plating notifies You that the Finished Goods are ready.
4.6. If you elect to collect the Finished Goods You shall collect the Finished Goods from Karas Plating’s premises at Brooklands Mill, English Street, Leigh, Lancashire, WN7 3EH within three Business Days of Karas Plating notifying You that the Finished Goods are ready.
4.7. Any dates quoted for delivery of the Finished Goods are approximate only, and the time of delivery is not of the essence. Karas Plating shall not be liable for any delay in delivery of the Finished Goods that is caused by a Force Majeure Event or Your failure to provide Karas Plating with adequate delivery instructions or any other instructions that are relevant to the supply of the Finished Goods.
4.8. If Karas Plating fails to deliver the Finished Goods, its liability shall be limited to the costs and expenses incurred by You in obtaining replacements for Your goods of similar description and quality in the cheapest market available. Karas Plating shall have no liability for any failure to deliver the Finished Goods to the extent that such failure is caused by a Force Majeure Event or Your failure to provide Karas Plating with adequate delivery instructions for the Finished Goods or any relevant instruction related to the supply of the Finished Goods.
4.9. Karas Plating may deliver the Finished Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle You to cancel any other instalment.
4.10. The risk in transit of Finished Goods shall be borne by You and shall be subject to the terms and conditions of the elected courier.
5. Quality of Finished Goods
5.1. Karas Plating warrants that on delivery, and for a period of 30 days from the date of delivery (warranty period), the Finished Goods shall:
(a) conform in all material respects with the Quotation; and
(b) be free from material defects in respect of the Metal Finishing Services supplied.
5.2. Subject to clause 5.3, Karas Plating shall repair the defective Finished Goods or refund the price of Metal Finishing Services of the defective Finished Goods in full if:
(a) You give notice in writing during the warranty period that some or all of the Finished Goods do not comply with the warranty set out in clause 5.1;
(b) Karas Plating is given a reasonable opportunity of examining the defective Finished Goods; and
(c) You (if asked to do so by Karas Plating) returns the defective Finished Goods to 5.3. Karas Plating’s place of business at Your cost.
Karas Plating shall not be liable for the Finished Goods’ failure to comply with the warranty in clause 5.1 if:
(a) You make any further use of such Finished Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because You failed to follow Karas Plating’s oral or written instructions or such instructions as are recognised in the industry as to the storage, installation, commissioning, use or maintenance of the Finished Goods or (if there are none) good trade practice;
(c) the defect arises as a result of Karas Plating following any drawing, design or specification supplied by You;
(d) You alter or repair such Finished Goods without the written consent of Karas Plating;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Finished Goods differ from any specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4. Except as provided in this clause 5, Karas Plating shall have no liability to You in respect of the Finished Goods’ failure to comply with the warranty set out in clause 5.1.
5.5. The terms of these Conditions shall apply to any repaired Finished Goods supplied by Karas Plating.
6. Title and risk
6.1. The risk in Your Goods or the Finished Goods shall not pass to Karas Plating at any time.
6.2. Title to Your Goods shall pass to Karas Plating at the time they are delivered to Karas Plating by You.
6.3. Title in the Finished Goods shall not pass to You until the earlier of:
(a) Karas Plating receives payment in full (in cash or cleared funds) for the Finished Goods and any other Finished Goods that Karas Plating has supplied to You in respect of which payment has become due, in which case title to the Finished Goods shall pass at the time of payment of all such sums; and
(b) You resell the Finished Goods, in which case title to the Finished Goods shall pass to You at the time specified in clause 6.5.
6.4. Until title to the Finished Goods has passed to You, You shall:
(a) store the Finished Goods separately from all other goods held by You so that they remain readily identifiable as Karas Plating’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Finished Goods;
(c) maintain the Finished Goods in satisfactory condition and keep them insured against all risks for their full price on Karas Plating’s behalf from the date of delivery;
(d) notify Karas Plating immediately if it becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(d); and
(e) give Karas Plating such information relating to the Finished Goods as Karas Plating may require from time to time.
6.5. Subject to clause 6.6, You may resell or use the Finished Goods in the ordinary course of its business (but not otherwise) before Karas Plating receives payment for the Finished Goods. However, if You resell the Finished Goods before that time:
(a) You do so as principal and not as Karas Plating’s agent; and
(b) title to the Finished Goods shall pass from Karas Plating to You immediately before the time at which resale by You occurs.
6.6. If before title to the Finished Goods passes to You, You become subject to any of the events listed in clause 13.2(b) to clause 13.2(d), then, without limiting any other right or remedy Karas Plating may have:
(a) Your right to resell Finished Goods or use them in the ordinary course of its business ceases immediately; and
(b) Karas Plating may at any time:
(i) require You to deliver up all Finished Goods in Your possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if You fail to do so promptly, enter any premises of You or of any third party where the Finished Goods are stored in order to recover them.
7.7 Supply of Metal Finishing Services
7.1. Karas Plating shall supply the Metal Finishing Services to You in accordance with the Quotation, subsequent Purchase Order, or as otherwise agreed.
7.2. Karas Plating shall use all reasonable endeavours to meet any performance dates for the Metal Finishing Services specified in the Quotation but any such dates shall be estimates only and time shall not be of the essence for the performance of the Metal Finishing Services.
7.3. Karas Plating reserves the right to amend the Quotation if necessary, to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Metal Finishing Services, and Karas Plating shall notify You in any such event.
7.4. Karas Plating warrants to You that the Metal Finishing Services will be provided using all reasonable care and skill.
8. Customer’s obligations
8.1. You shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with Karas Plating in all matters relating to the Metal Finishing Services;
(c) provide Karas Plating with Your Goods and such information and materials as Karas Plating may reasonably require in order to supply the Metal Finishing Services, and ensure that such information is complete and accurate in all material respects; and
(d) comply with any additional obligations as set out in Quotation.
8.2. If Karas Plating’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation (Your Default):
(a) without limiting or affecting any other right or remedy available to it, Karas Plating shall have the right to suspend performance of the Metal Finishing Services until You remedy Your Default, and to rely on Your Default to relieve it from the performance of any of its obligations in each case to the extent Your Default prevents or delays Karas Plating’s performance of any of its obligations;
(b) Karas Plating shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Karas Plating’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) You shall reimburse Karas Plating on written demand for any costs or losses sustained or incurred by Karas Plating arising directly or indirectly from Your Default.
9. Charges and payment
9.1. The price for the Metal Finishing Services:
(a) shall be the price set out in the Quotation or as otherwise agreed and
(b) shall be exclusive of all costs and charges of packaging, insurance, transport of the Finished Goods, which shall be invoiced to You where appropriate.
9.2. Karas Plating reserves the right to:
(a) increase the price set out in the Quotation, by giving notice to You at any time before delivery, to reflect any increase in the cost of the Metal Finishing Services that is due to:
(i) any factor beyond the control of Karas Plating (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by You to change the delivery date(s), quantities, types or specification of Finished Goods ordered; or
(iii) any delay caused by any instructions of You in respect of the Finished Goods or failure of You to give Karas Plating adequate or accurate information or instructions in respect of the Finished Goods.
9.3. In respect of Finished Goods, Karas Plating shall invoice You on or at any time after completion of delivery.
9.4. You shall pay each invoice submitted by Karas Plating:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Karas Plating, and time for payment shall be of the essence of the Contract.
9.5. All amounts payable by You under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Karas Plating to You, You shall, on receipt of a valid VAT invoice from Karas Plating, pay to Karas Plating such additional amounts in respect of VAT as are chargeable on the supply of the Metal Finishing Services at the same time as payment is due for the supply of the Metal Finishing Services.
9.6. If You fail to make a payment due to Karas Plating under the Contract by the due date, then, without limiting Karas Plating’s remedies under clause 13 (Termination), You shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.6 will accrue each day at 6% a year above the Bank of England’s base rate from time to time.
9.7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Intellectual property rights
10.1. All Intellectual Property Rights in or arising out of or in connection with the Metal Finishing Services (other than Intellectual Property Rights in Your Goods provided by You) shall be owned by Karas Plating.
10.2. You grant Karas Plating a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by You to Karas Plating for the term of the Contract for the purpose of providing the Metal Finishing Services to You.
11.1. Each party undertakes that it shall not at any time and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.
11.2. Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1. Karas Plating has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5.0m per claim. The limits and exclusions in this clause reflect the insurance cover Karas Plating has been able to arrange and You are responsible for making Your own arrangements for the insurance of any excess loss.
12.2. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.3. Subject to clause 12.2, Karas Plating’s total liability to You shall not exceed the price of the order. Karas Plating’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
12.4. This clause 12.4 sets out specific heads of excluded loss and exceptions from them:
(a)Subject to clause 12.2, the types of loss listed in clause 12.4(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) Loss of profits.
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated savings.
(v) Loss of use or corruption of software, data or information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss.
12.5. Karas Plating has given commitments as to compliance of the Finished Goods and Plating Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
12.6. Unless You notify Karas Plating that You intend to make a claim in respect of an event within the notice period, Karas Plating shall have no liability for that event. The notice period for an event shall start on the day on which You became, or ought reasonably to have become, aware of the event having occurred and shall expire 1 month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.7. This clause 12 shall survive termination of the Contract.
13.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 1 weeks’ written notice.
13.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.3. Without affecting any other right or remedy available to it, Karas Plating may terminate the Contract with immediate effect by giving written notice to You if:
(a) You fail to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of You.
13.4. Without affecting any other right or remedy available to it, Karas Plating may suspend the supply of Plating Services or all further deliveries of Finished Goods under the Contract or any other contract between You and Karas Plating if You fail to pay any amount due under the Contract on the due date for payment, You become subject to any of the events listed in clause 13.2(b) to clause 13.2(d), or Karas Plating reasonably believes that You are about to become subject to any of them.
14. Consequences of termination
14.1. On termination of the Contract You shall immediately pay to Karas Plating all of Karas Plating’s outstanding unpaid invoices and interest and, in respect of Plating Services but for which no invoice has been submitted, Karas Plating shall submit an invoice, which shall be payable by You immediately on receipt;
14.2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
14.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
15. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).
16.1. Assignment and other dealings
(a) Karas Plating may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Karas Plating.
(a) Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b)Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.3. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.4. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6. Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
16.7. Third parties rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
16.8. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
16.9. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
16.10. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.