Terms & Conditions of Supply of William Twigg (Matlock) Limited
Updated October 2018
The Customer’s attention is drawn in particular to the provisions of clause 10.
Brexit Trigger Event
means any of the following events occurring at any time after the UK ceases to be a Member State of the European Union: (i) a substantial adverse impact on the Supplier’s ability to perform the Contract in accordance with its terms and the law; (ii) an increase in the costs incurred by the Supplier in performing the Contract of at least 25% since the price for the Goods was last agreed; (iii) the price of the Goods is at least 25% lower than the market value for similar products;
means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
means the terms and conditions set out in this document as amended from time to time in accordance with clause 14.4;
means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
means the person or firm who purchases the Goods from the Supplier;
Force Majeure Event
means an event or circumstance beyond a party’s reasonable control;
means the goods (or any part of them) and any related services as set out in the Order;
Intellectual Property Rights
means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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;
means the Customer’s order for the Goods, as set out in the Customer’s purchase order form, or as placed by the Customer through the Supplier’s Site, or the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be;
means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier; and
means William Twigg (Matlock) Ltd registered in England and Wales with company number 00420697 and with its registered office at 26 Bakewell Road, Matlock, Derbyshire DE4 3AX.
a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
a reference to writing or written includes faxes and emails.
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
The Order shall be deemed to be accepted when the Supplier issues a written acceptance of the Order, including where the Supplier issues an email confirmation for an Order placed through the Site, or when the Supplier commences performance, whichever occurs the earlier, and at which point the Contract shall come into existence.
The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures or on the Site are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
Goods made to special order cannot be cancelled and if the Customer purports to do so, or declines to accept delivery, the Customer shall pay the full price for the Goods.
A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue, unless extended at the Supplier’s sole discretion.
The Goods are described on the Site or within its suppliers’ catalogues, as modified by any applicable Specification.
To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
Where the Goods include the provision of outline design services by the Supplier, the Customer acknowledges and accepts that such services are provided on an advisory basis only and all conditions, warranties or other terms concerning the Goods which might otherwise be implied into the Contract (by statute or otherwise) are hereby expressly excluded. The Customer is encouraged to seek any necessary design assurances from its appointed designers.
The Supplier shall ensure that:
each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers or delivery notices (depending on the nature of the Customer’s account), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
If the Customer fails to take delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
delivery of the Goods shall be deemed to have been completed at 9.00 am on the 3rd Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
the Supplier shall store the Goods until delivery takes place, and reserves the right to charge the Customer for all related costs and expenses (including insurance).
If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
The Supplier warrants (in respect only of any Goods without the benefit of a manufacturer’s guarantee) that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
conform in all material respects with their description and any applicable Specification; and
be free from material defects in design, material and workmanship.
Subject to clause 5.3, if:
the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
the Supplier is given a reasonable opportunity of examining such Goods; and
the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
the Customer alters or repairs such Goods without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
These Conditions shall also apply to any repaired or replacement Goods supplied by the Supplier.
The risk in the Goods shall pass to the Customer on completion of delivery.
Title to the Goods shall not pass to the Customer until the earlier of:
the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
Until title to the Goods has passed to the Customer, the Customer shall:
store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d) inclusive; and
give the Supplier such information relating to the Goods as the Supplier may require from time to time.
Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
it does so as principal and not as the Supplier’s agent; and
title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d) inclusive, then, without limiting any other right or remedy the Supplier may have:
the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
the Supplier may at any time:
require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
if the Customer fails to deliver up all Goods promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
The Supplier may, by giving notice to the Customer at any time, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
the imposition of price increases by a manufacturer;
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
The price of the Goods:
excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer in addition to the price of the Goods. Current transport charges are detailed on the Site.
The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
The 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). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
Intellectual Property Rights
All Intellectual Property Rights in or arising out of or in connection with the supply of the Goods (other than Intellectual Property Rights in any Specification provided by the Customer) shall be owned by the Supplier.
The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any Specification provided by the Customer to the Supplier for the term of the Contract for the purpose of supplying the Goods to the Customer.
Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing to do so;
the Customer 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;
the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d) inclusive, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest. Where the Customer decides to cancel the Order in any case, the Supplier reserves the right to charge the Customer for the Supplier’s handling, restocking and administration charges.
Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
If a Brexit Trigger Event occurs, the Supplier may:
require the Customer to negotiate in good faith an amendment to the Contract to alleviate the Brexit Trigger Event; and
if no such amendment is made to the Contract within 30 days, terminate the Contract by giving the Customer not less than 3 months’ written notice. On termination under this clause 11, clauses 10.4 and 10.5 shall apply.
Save as expressly provided in this clause 11, a Brexit Trigger Event shall not terminate or alter (or give any party a right to terminate or alter) the Contract, or invalidate any of its terms or discharge or excuse performance under it. If there is an inconsistency between the provisions of this clause and any other provision of the Contract, the provisions of this clause shall prevail.
Limitation of liability
Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation; or
any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
Subject to clause 12.1:
the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
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 a Force Majeure Event. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate the Contract by giving 30 days written notice to the affected party.
Assignment and other dealings
The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
Each party undertakes that it shall not at any time during the Contract, and for a period of 2 years after termination, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 14.2(b). For the purposes of this clause 14, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 14.2; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
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.
Each party agrees that it 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 misstatement based on any statement in the Contract.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause 14.6, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the 2nd Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
The provisions of this clause 14.6 shall not apply to the service of any proceedings or other documents in any legal action.
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.
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.
William Twigg (Matlock) Limited