Conditions of business/terms & conditions

1. INTERPRETATION

In these Conditions:

"Company" means AJT Engineering Limited.

"Contract" means the contract between the Company and the Customer for the supply of Services and/or Products into which these Conditions are incorporated.

"Customer" means the person, firm or company with whom the Contract is made.

"Goods" means the goods supplied by the Customer to the Company in respect of which the Services are to be provided.

"Products" means any goods or products supplied to the Customer by the Company but excluding for the avoidance of doubt the Goods.

"Services" means services and/or treatments of any description provided by the Company including (but without limitation) electroplating, metal finishing, painting, repairs, fabrication, refurbishment, metal plating, galvanising, heat treatment, shot blasting, straightening, crack detecting, pickling, grinding, chemical stripping, profile flame cutting, welding, machining, chemical, laboratory, technical or other consultancy Services, Provision of Site Services.

"writing" and "written" shall include facsimile transmission and e-mail.

2. FORMATION OF CONTRACT

(a) The Company shall supply the Services and Products in accordance with any quotation of the Company which is accepted by the Customer or any order of the Customer which is accepted by the Company subject to either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any quotation is accepted or purported to be accepted or any order is made or purported to be made by the Customer.

(b) Unless previously withdrawn any quotation of the Company is open for acceptance within 28 days or such other period as may be specified in the quotation and after that period of time the Company reserves the right to reject the order. The Company may cancel any Contract which is entered into prior to inspection of the Goods or prior to any test processing of a sample of the Goods and renegotiate the Contract after such inspection or after the results of such test processing becomes available and if the Company does so (whether or not the Contract is renegotiated and performed by the Company) the Customer shall have no claim against the Company by reason of the cancellation.

(c) Any terms or conditions contained in the Customer's documentation which are inconsistent with these Conditions shall not form part of the Contract unless accepted by the Company in writing.

(d) No variation to these Conditions shall be effective unless made in writing and signed by an authorised officer or employee of the Company. At the request of the Customer the Company wil1 verify in writing whether any named individual has the requisite authority.

(e) All specifications, descriptions and illustrations contained in the Company's catalogues, brochures, leaflets or other advertising, publicity or information materials are intended to give a general indication of the Services and Products concerned and none of them shall form part of or be incorporated into the Contract.

(f) If Services are provided or Products sold to the Customer in accordance with designs, drawings or other data supplied or approved by the Customer or with the use of tools, equipment or materials supplied by the Customer, the Customer shall be solely responsible for the adequacy of the designs, drawings or other data and the quality and suitability of the tools, equipment and materials and for ensuring that the Goods or Products are fit for their purpose and the Customer shall indemnify the Company against any claim made against the Company to the extent that the claim arises as a result of or otherwise in connection with the inadequacy of such designs, drawings or other data or the unsuitability of or defects in such tools, equipment or material together with any costs or expenses incurred by or awarded against the Company in connection with any such claim.

(g) All specifications, technical descriptions, drawings, documents, and other information contained in or submitted in connection with any quotation or acknowledgement of order or otherwise supplied by the Company are the Company's copyright approximate only and not guaranteed unless a specific written undertaking is included in the quotation or acknowledgement of order.

The Customer will not without the prior written consent of the Company:

give away, loan, exhibit or sell any such specifications, technical descriptions, drawings, documents, or other information or extracts therefrom or copies thereof; or
use the specifications, technical descriptions, drawings, documents, or other information other than in connection with the use or sale of the Goods or Products by the Customer.

(h) The Company reserves the right to correct any clerical, typographical or summation errors, or omissions to its quotations, acknowledgements of order or other documents at any time.

3. PRICES AND PAYMENT

(a) All prices quoted are exclusive of VAT, ex-works and the Company reserves the right to make additional charges to cover the cost of packaging, insurance, carriage, and other incidental expenses.

(b) The Company shall be entitled to increase the Contract price in the event of any changes in the cost of materials since the date of the quotation or acknowledgement of order.

(c) Unless otherwise stated in the quotation or acknowledgement of order the price for each delivery shall be paid in full by the Customer within 30 days of the end of the month during which the Company's invoice is delivered. Invoices will generally be despatched immediately upon the Goods or Products being ready for despatch or collection and in the event of the Goods or Products being delivered by instalments a separate invoice in respect of each instalment will generally be despatched immediately upon the relevant instalment of the Goods or Products being ready for despatch or collection.

(d) The Company shall be entitled to charge interest (with monthly rests) at the rate of four per cent above National Westminster Bank PLC Base Lending Rate for the time being in force on any sums which remain unpaid after the same shall become due.

4. CANCELLATION AND SUSPENSION OF THE CONTRACT

(a) This Condition applies if:

the Customer is in breach of any of its obligations under the Contract or any other contract between the Customer and the Company; or
unforeseen events occur which materially affect the commercial effect of the Contract; or
the Customer becomes bankrupt, goes into liquidation, has a receiver, administrative receiver or administrator appointed over any of its property or assets or is otherwise insolvent; or
the Customer ceases or threatens to cease to carry on business; or
the Company reasonably apprehends that any of the events mentioned in paragraphs (iii) or (iv) is about to occur in relation to the Customer and notifies the Customer accordingly.

(b) If this Condition applies then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Company and if Products have been delivered to the Customer but not paid for or any Services have been carried out, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

5. LIEN

The Company shall have a Lien on the Goods and all other property belonging to the Customer in the Company's possession. The lien shall be exercisable in respect of all monies which in the reasonable opinion of the Company are lawfully due from the Customer to the Company. If the lien is not satisfied by payment of the monies due within three calendar months from the date upon which the Company first gives written notice to the Customer requiring payment of the monies due, the Company may without further notice to the Customer sell the Goods or other property in such manner as it thinks fit and the proceeds of any such sale (after deduction of the expenses of sale) shall first be applied in or towards satisfaction of the monies due to the Company and the balance (if any) shall be paid to the Customer.

6. TITLE

(a) Notwithstanding delivery and the passing of risk in the Products or any other provision of these Conditions:

the property in the Products shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Products.
further to sub-paragraph (i) the property in the Products shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of all sums due to the Company on any account of the Customer.

(b) Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to deliver up the Products to the Company and if the Customer fails to do so forthwith to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.

(c) Unless otherwise agreed to in writing by the Company any jigs or tooling made by or for the Company for the purpose of the Contract shall remain the property of the Company notwithstanding that the cost may be included in whole or in part in the Contract price. All drawings and information relating to such jigs and tools remain the Company's property and copyright or design right.

7. DELIVERY

(a) Delivery of the Products or re-delivery of the Goods shall be made by the Customer collecting the Products or Goods from the Company's premises on the agreed collection date once the Company has notified the Customer that the Products or Goods are ready for collection or if some other place for delivery is agreed by the Company, by the Company delivering the Products or Goods to that place.

(b) Any dates quoted for delivery of the products or re-delivery of the Goods or completion of the Services are approximate and are given for information only and shall under no circumstances be essential terms. A delay in delivery, re-delivery or completion of the Services or Products including dates later than the date or dates provided in the Contract shall not constitute a breach of contract and shall not entitle the Customer to avoid the Contract or to any other remedy unless the Company has guaranteed the date in a written warranty which expressly modifies the provisions of this Condition.

(c) The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Company's obligations in relation to the Goods or the Products or the Services if the delay or failure was due to any cause beyond the Company's reasonable control.

(d) If the Customer fails to take delivery of the products or re-delivery of the Goods or fails to give the Company adequate instructions at the time stated for delivery or re-delivery then without prejudice to any other right or remedy available to the Company, the Company may:

store the Goods or Products until actual delivery and charge the Customer for the reasonable costs (including insurance but without imposing any obligation on the Company to insure) of storage; or
on the expiration of 14 days’ notice to the Customer sell the Goods or Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the price under the Contract or account to the Customer for any profit.

(e) All Goods will be suitably packed by the Customer having regard amongst other things to their manufacturing tolerances, quality, and inherent value. The Company will re-use the packing provided by the Customer where practical or will pack to at least as good a standard as that of the Customer. Any additional packing requirements whether required by the Customer or deemed necessary by the Company will be chargeable.

8. RISK

(a) Risk of damage to or loss of the Goods shall pass from the Customer to the Company at whichever of the following times is relevant:

if the Company or a third party on behalf of the Company collects the Goods from the Customer's premises at the time of completion of the loading of the Goods onto the vehicle collecting them
if the Customer or a third party on behalf of the Customer transports the Goods to the Company's premises or to any other location specified by the Company at the time of completion of the unloading of the Goods at such premises or location.
in any other case at the time of completion of the unloading of the Goods at the Company's premises.

(b) Risk of damage to or loss of the Goods or (as the case may be) Products shall repass or pass from the Company to the Customer at whichever of the following times is relevant:

if the Customer or a third party on behalf of the Customer collects the Goods or Products from the Company's premises on the agreed collection date at the time of completion of the loading of the Goods or Products onto the vehicle collecting them.
if the Customer or a third party on behalf of the Customer fails to collect the Goods or Products from the Company's premises on the agreed collection date at the close of business on such date.
if the Company or a third party on behalf of the Company transports the Goods or Products to the Customer's premises or to any other agreed location at the time of completion of unloading of the Goods or Products at such premises or location or if the Customer, its agents or representatives wrongfully fail to take delivery of the Goods or Products at the time when the Company or third party has tendered delivery of them.
in any other case at the time of completion of the loading of the Goods or Products at the Company's premises.

(c) Where the Contract provides for collection of the Goods, re-delivery of the Goods or delivery of the Products by the Company or a third party on behalf of the Company the Company will entertain a claim by the Customer in respect of loss or damage in transit only if the Customer:

gives written notice to the Company within seven days after the date of the Company's advice note or other notification of the despatch of the Goods or Products in the case of non-delivery or within three working days of the date of delivery of the Goods or Products in any other case: and
where the Goods or Products are transported by a third party complies in all respects with the third party's conditions of carriage for notifying claims for loss or damage in transit.

(d) Jigs, patterns, tooling, and other similar items supplied to the Company by or on behalf of the Customer shall be used and worked upon at the Customers risk.

(e) The Company's liability in respect of any damage to or loss of the Goods or Products shall be subject to the limitations and other provisions set out in Condition 11.

9. SUB-CONTRACTING AND ASSIGNMENT

(a) The Company reserves the right to sub-contract the fulfilment of the Contract or any part thereof in which event the Company contracts on behalf of itself and its sub-contractors.

(b) None of the rights or obligations of the Customer under the Contract may be assigned or transferred by the Customer in whole or in part without the prior written consent of the Company.

10. GUARANTEE

(a) Subject to the provisions set out in this Condition 10 if the Services are found to be defective as a result of the Company failing to use all reasonable skill and care or (save for discrepancy in weight or quantity) otherwise not in accordance with the Contract, the Customer shall make the Goods available for inspection at a time and place to be arranged by the Company and if the Company and the Customer do not agree that the Customer should accept the Services at any agreed value the Company undertakes at its option to:

repay or allow the Customer the invoice price of the defective Services (including any freight costs previously charged by the Company where appropriate); or
use all reasonable endeavours to make good the defect by performing the Services again at the Company's expense as soon as may be reasonably practicable.

(b) Subject to the provisions set out in this Condition 10 if the Products or any part thereof are found to be defective as a result of faulty manufacture or workmanship or otherwise not in accordance with the Contract the Customer shall make the Products available for inspection at a time and place to be arranged by the Company and if the Company and the Customer do not agree that the Customer should accept the Products at any agreed value the Company undertakes at its option to:

in exchange for the return of the Products repay or allow the Customer the invoice price thereof (including any freight costs previously charged by the Company where appropriate) and reimburse the Customer for any reasonable transport costs incurred by the Customer in carrying the relevant Products from the place of original delivery of such Products to the Company's premises from which they were despatched or to such other place as the Company may nominate; or
make good the defect at the Company's expense as soon as may be reasonably practicable; or
in exchange for return of the Products replace the Products by delivering replacement goods to the original place of delivery as soon as may be reasonably practicable and reimburse the Customer for any reasonable transport costs incurred by the Customer in carrying the relevant Products from the place of original delivery of such Products to the Company's premises from which they were despatched or to such other place as the Company may nominate.

all Goods supplied by the Customer to the Company will be suitable for the Company to carry out the Services on.
The Customer will draw the Company's attention in writing to components/ equipment that may contain a pressurised liquid or gaseous mixture to eliminate any unexpected release of pressure during dis-assembly of the components with potentially serious results.

(d) The Customer acknowledges that

without prejudice to the obligations on the Customer's part set out in sub paragraph (c)(i) of this Condition if the Company is of the opinion in the light of the information supplied by the Customer, with regard to the Goods and of its own inspection or examination of the Goods that the Goods are in such a condition that there is a risk that such condition may prejudice the effective carrying out of the Services it may report accordingly to the Customer and suspend performance of the Contract pending receipt of instructions from the Customer which the Customer shall give within seven days of such report.
although the Company will if requested by the Customer to do so make available to the Customer the benefit of the Company's experience and technical knowledge of the Services the Customer shall be solely responsible for deciding the nature of the Services it requires to be applied to the Goods.
no responsibility can be accepted by the Company for distortion, buckling, fracture or changes in physical or mechanical properties of the Goods as a result of the provision of the Services.
distortion arises from the introduction or relief of stresses in the Goods as a result of the manufacture or fabrication of the Goods by the Customer.
without imposing any obligation on the Company which would not otherwise exist in the absence of this sub-paragraph (v) neither the Services nor the Products shall be regarded as being defective if the Goods or Products are not fit for the purpose for which they were acquired unless the purpose is one for which the Goods or Products are commonly supplied or the Customer has expressly notified the Company in writing as to the particular purpose for which such Goods or Products are required and the Company has accepted this stipulation without prejudice in either case to any other paragraph of these Conditions including (but without limitation) sub-paragraph (e)(ii) of this Condition.

(e) The guarantees set out in paragraphs (a) and (b) and all other terms and conditions of the Contract are subject to and the Company shall (subject to the provisions of Condition 11

in respect of any defect in the provision of the Services arising from any circumstances or events referred to in paragraphs (c) and/or (d) of this Condition 10.
in respect of any defect in the Products or the Goods arising from any drawing design or specification supplied or approved by or on behalf of the Customer.
in respect of any defect in the Products or the Goods arising from fair wear and tear wilful damage negligence abnormal working conditions failure to follow the Company's instructions whether oral or in writing or misuse.
and the Customer shall be deemed to have accepted the Products and the Services and it shall be conclusively agreed that the Products and Services are in accordance with the Contract unless:

(aa) the Customer gives notice in accordance with paragraph (f); or

(bb) within seven days after receipt of the Products or re-delivery of the Goods and prior to their use or resale the Customer serves upon the Company a written notice specifying any defect in the quality or state of the Products or Services or other respect in which the Products or Services are not in accordance with the Contract which would be apparent upon reasonable inspection or by such testing as it is reasonable in all the circumstances for the Customer to undertake or stating why the Products or Services

are not otherwise in accordance with the Contract and thereafter provides to the Company a reasonable opportunity of inspecting and testing the Products or the Goods before they have been used or resold; or

(cc) in the case of a defect in the quality or state of the Products or Services or other respect in which the Products or Services are not in accordance with the Contract which would not be apparent upon reasonable inspection or reasonable testing the Customer serves upon the Company written notice of such defect or respect forthwith upon its discovery specifying the matters complained of and affording to the Company a reasonable opportunity of inspecting the Products or the Goods before any making good or replacement is undertaken. The Customer shall not be excused from providing such opportunity by reason only of the incorporation of the Products or the Goods in the property of a third party or the location of the Goods in upon or under the premises or land of a third party.

(f) Where the Contract provides for testing or inspection of the Products or the Goods by or on behalf of the Customer before delivery or re-delivery whether at the Company's premises or elsewhere then upon the Company giving notice of the availability of the Products or the Goods for inspection/testing the Customer shall inspect and/or test

the Products or the Goods within seven days of such notice. If the Customer does not inspect or test the Products or the Goods within the time specified or if within fourteen days of such testing or inspection the Customer does not notify the Company in writing that the Products or the Services are not in accordance with the Contract specifying the matters complained of then the Customer shall conclusively be deemed to have accepted the Products and/or the Services as being in accordance with the Contract and shall not thereafter be entitled to reject the Products, the Goods or the Services on the grounds of anything which such testing or inspection has or would have revealed.

(g) If the Customer or any third party carries out any rectification work to any Goods which have been subjected to allegedly defective Services or to any allegedly defective Products unless such work is carried out with the prior written consent of the Company, the Company shall have no further liability to the Customer under this Condition 10 and the Customer shall not be entitled to make any claim against the Company in respect of any such works.

11. LIABILITY

(a) The Customer expressly holds itself out as making the Contract in the course of a business.

(b) Except as expressly provided in these Conditions all warranties, statements, terms and conditions or undertakings which may be implied by statute common law custom of the trade or otherwise are hereby excluded to the fullest extent permitted by law.

(i) death or personal injury resulting from its negligence or that of its employees.

direct physical damage to the Goods caused by the Company's or its employees negligent acts or omissions whilst carrying out a physical process on the Goods during the performance of the Contract provided that the Company's liability in respect of such damage shall not in any circumstances exceed £100K (or such other sum as is agreed to in writing by the Company for the express purpose of this sub-paragraph (ii) in aggregate in respect of any one event or series of connected events.
direct physical damage to or physical loss of the Goods not falling within the scope of sub-paragraph (ii) above or to the Products which occurs whilst the risk in the Goods or Products is vested in the Company in accordance with the provisions of Condition 8 if and to the extent and up to the maximum sum that such damage or loss is covered by any policy of insurance taken out by the Company and operative at the time of the damage or loss. The Company undertakes to maintain or procure the maintenance of an insurance policy or policies which provide cover against any physical damage to or physical loss of the Goods or Products which occurs whilst the risk in the Goods or Products is vested in the Company caused by fire, lightening, explosion, aircraft, riot, civil commotion, malicious damage, storm, tempest, flood, escape of water, impact, theft, accidental damage (other than whilst carrying out a physical process on the Goods or Products) on and subject to such terms, conditions, exceptions and deductibles as the Company acting in good faith deems to be appropriate in the circumstances. If at the time any claim arises under the Company's insurance policy or policies the Customer is or would but for the existence of the Companies insurance policy or policies be entitled to an indemnity under any other policy or policies neither the Company nor its insurers shall be liable except (and subject to the terms and conditions of the policy or policies) in respect of any excess beyond the amount which would have been payable under such other policy or policies had the Company's insurance policy or policies not been effected.

(d)Subject to paragraph (c) the Company will not be liable to the Customer for any:

direct loss, damage, or injury; and/or
indirect consequential or special loss damage or injury (including but without limitation financial loss, loss of profits, loss of business or contracts, loss of operating time or loss of use)
whether foreseeable or not to the Customer the Goods or the Products or to the Customer's other property howsoever, whensoever, or wheresoever arising whether by reason of any representation (other than fraudulent) or any implied warranty condition or other term or duty at common law or under statute or under the express terms of the Contract (and whether caused by the negligence of the Company its employees or otherwise) or otherwise in respect of or in connection with the supply of the Services and/or the Products or the use or resale of the Goods or the Products;

(e) The Company is concerned to ensure that the price of providing the Services and Products remains competitive and taking into account:

the fact that the Customer is in a better position than the Company to know or ascertain the amount of any loss which will arise out of any defect in the Services or the Products.
the fact that the extent of the damage that might be caused or alleged to be caused to the Customer is disproportionate to the amount that can reasonably be charged (and is charged) by the Company to the Customer.
the terms and conditions upon which the Company's own suppliers are prepared to supply goods and services to the Company

this must necessarily involve the incorporation of the terms and conditions set out in this Condition 11.

12. PROPER LAW AND JURISDICTION

(a) The Contract shall be governed by Scottish law in every particular including formation and interpretation and shall be deemed to have been made in Scotland.

(b) Any proceedings arising out of or in connection with the Contract may be brought in any court of competent jurisdiction in Scotland.

(c)The submission by the Company and the Customer to such jurisdiction shall not limit the right of the Company to commence any proceedings arising out of the Contract in any other jurisdiction it may consider appropriate.

13. INDEMNITY AND TRADE MARKS

(a) The Customer shall indemnify and keep the Company indemnified from and against any liability of any kind to any third party howsoever arising (whether in contract tort or otherwise and including, but not limited to, liability arising from the negligence of the Company or from the negligence of any person for whom the Company is vicariously liable) in respect of or in connection with:

any defect in the Products, the Goods, or the Services; and/or
any loss injury or damage of any kind (whether direct, indirect or otherwise and including but not limited to any loss of profit and/or any incidental, consequential or special loss or damage of any description) arising out of in respect of or in connection with the supply of the Products and/or Services or the Goods and/or Products use or resale.

except to the extent that the Company has expressly assumed liability under these Conditions for the loss, injury or damage concerned.

(b) If the Products are to be supplied or any Services are to be carried out on the Goods by the Company in accordance with a design drawing or specification or data submitted by the Customer or using tooling or goods supplied by the Customer, the Customer shall indemnify the Company against all losses damages costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade-mark or other industrial or intellectual property rights of any other person which results from the Company's use of the Customer's designs, drawings, specifications, data, tooling or goods.

14. WAIVER

The rights of the Company or the Customer shall not be prejudiced or restricted by any indulgence or forbearance extended by either party to the other and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach.

15. SEVERANCE

In the event of any of the words, provisions, terms and/or Conditions herein contained being unenforceable or void for any reason whatsoever, each word, provision, term or Condition (including any paragraph or sub-paragraph herein contained) shall be deemed to be severable from the remaining words, provisions, terms or Conditions and such remaining words, provisions, terms or Conditions shall remain in full force and effect.

16. HEADINGS

The headings to these Conditions are for convenience only and shall not affect their construction.

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