TERMS AND CONDITIONS OF TRADING
of Kelland Precision Tooling Ltd (“the Seller”)
1.1 Orders are accepted subject to the following conditions to the exclusion of all others.
No variation of these terms or conditions shall be binding on the Seller unless such
variation be specifically agreed to in writing under the signature of one of the
Directors of the Sellers.
1.2 The Seller’s Employees or Agents are not authorised to make representations
concerning the Goods unless confirmed by the Seller in writing; in entering into the
Contract the Buyer acknowledges that it does not rely upon, and waives any claim
for breach of, any such representations which are not so confirmed.
1.3 Any advice or recommendation given by the Seller or its Employees or Agents to the
Buyer or its Employees or Agents as to the storage, application, or use, of the Goods
which is not confirmed in writing by the Seller, is followed or acted upon entirely at
the Buyer’s own risk and accordingly the Seller shall not be liable for any such
advice or recommendation which is not so confirmed.
2.1 The specifications in the Seller’s quotation are correct at the time to going
to press; however the Seller’s policy is one of continuous product improvement and
although where practicable the Seller will give the Buyer notice and details of
alterations and improvements, this is not always possible and the Seller does
reserve the right to make alterations or improvements without notice.
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller
unless and until confirmed in writing by the Seller’s authorised representative.
3.2 The quantity, quality and description of and any specification for the Goods shall be
those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order
(if accepted by the Seller).
4.1 All quotations and offer prices are exclusive of Value Added Tax which will be added
to all invoices at the rate applying at the appropriate Tax Point.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before
delivery to increase the price of the Goods to reflect any increase in the cost to the
Seller which is due to any factor beyond the control of the Seller (such as, without
limitation, any Foreign Exchange fluctuation, currency regulation, alteration of duty,
significant increase in the cost of labour, materials, or other costs of manufacture,
any change in delivery dates, quantities or specifications for the Goods which is
requested by the Buyer, or any delay caused by any instructions of the Buyer or
failure of the Buyer or failure of the Buyer to give the Seller adequate information or
4.3 The Seller reserves the right to charge interest (both before and after any
Judgement) on any account not paid according to the Seller’s terms of payment such
interest to be at the rate of 2½% per month or part month overdue. Interest will be
added to statements and any interest due and unpaid will be left as an outstanding
4.4 The Seller reserves the right to add to any overdue account the costs incurred by the
Seller in collecting the account through any third party acting on the Seller’s behalf.
5.1 Accounts are due for payment not later than the end of the month following the
month of despatch. The Seller reserves the right to suspend manufacture or delivery
of any orders from any Buyer whose account is overdue.
6.1 Any date or time named by the Seller for delivery is an estimate only and the Seller
shall not be liable for damages or otherwise for any loss occasioned by delivery after
such estimated dates where this is due to circumstances referred to in
sub-paragraph 6.2 of this condition and the Buyer shall not be entitled to cancel
the order merely because of such delay.
6.2 No responsibility is accepted for delay caused by war, force majeure, restraint or
control by government, strikes, lockouts, disputes, breakdown, accidents to or
breakdown or failure of works, plant or machinery or any other circumstances beyond
the control of the Seller or the Buyer respectively, which affect or interfere with
production or delivery of goods sold, and the Seller reserves the right to cancel or
suspend orders or deliveries or to make partial deliveries only on the occurrence of
any such eventualities.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a
separate Contract and failure by the Seller to deliver any one or more of the
instalments in accordance with these Conditions or any claim by the Buyer in
respect of any one or more instalments shall not entitle the Buyer to treat the
Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason other than:
(i) any cause mentioned in sub-paragraph 6.2 of this condition; or
(ii) the Buyer’s fault
and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited
shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest
available market) of similar Goods to replace those not delivered over the price of the
6.5 Notwithstanding anything to the contrary in these conditions where delivery of the
Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up
to ten per cent more or ten per cent less than the quantity ordered without any
adjustment in the price and
the quantity so delivered shall be deemed to be the quantity ordered.
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises at the time when the
Seller notifies the Buyer that the Goods are available for collection: or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at
the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods,
the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other
provision of these Conditions, the property in the Goods shall not pass to the
Buyer until the Seller has received in cash or cleared funds payment in full of the
price of the Goods and all other goods agreed to be sold by the Seller to the
Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall
hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the
Goods separate from those of the Buyer and third parties and properly stored,
protected and insured and identified as the Seller’s property. Until that time the
Buyer shall be entitled to re-sell or use the Goods in the ordinary course of its
business, but shall account to the Seller for the proceeds of sale or otherwise of
the Goods, whether tangible or intangible, including insurance proceeds, and
shall keep all such proceeds separate from any monies or property of the Buyer
and third parties and, in the case of tangible proceeds, properly stored, protected
7.4 Until such time as the property in the Goods passes to the Buyer (and provided
the Goods are still in existence and have not been re-sold) the Seller shall be
entitled at any time to require the Buyer to deliver up the goods to the Seller and,
if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or
any third party where the Goods are stored and re-posses the Goods.
7.5 the Buyer shall not be entitled to pledge or in any way of security for any
Indebtedness any of the Goods which remain the property of the Seller but if
the Buyer does so all monies owing by the Buyer to the Seller shall (without
prejudice to any other right or remedy of the Seller) forthwith become due and
7.6 In addition to any right of lien to which the Seller may by law be entitled the Seller
shall (in the event of the Buyer’s insolvency) be entitled to a general lien on all
goods of the Buyer in the Seller’s possession (although such goods or some of
them may have been paid for) for the unpaid price of any other goods sold and
delivered to the Buyer by the Seller under the same or any other Contract.
8. DETERMINATION OF CONTRACT:
8.1 This clause applies if:
8.1.1 the Buyer shall make default in, or commit a breach of the Contract or any other of
his obligations to the Seller; or
8.1.2 the Buyer makes any voluntary arrangement with its Creditors or becomes subject
to an Administration Order or (being an individual or firm) becomes bankrupt or
(being a Company) goes into liquidation (otherwise than for the purpose of
amalgamation or reconstruction); or
8.1.3 an encumbrancer takes possession or a Receiver is appointed, of any of the
property or assets of the Buyer; or
8.1.4 the Buyer ceases, threatens to cease, to carry on business; or
8.1.5 the Seller reasonably apprehends that any of the events mentioned above is about
to occur in relation to the Buyer and notifies the Buyer accordingly.
8.2 If this clause applies then, without prejudice to any other right or remedy
available to the Seller, the Seller shall be entitled to cancel the Contract or
suspend any further deliveries under the Contract without any liability to the Buyer
and if the Goods have been delivered but not paid for, the price shall become
immediately due and payable notwithstanding any previous agreement or
arrangement to the contrary.
9. SPECIAL ITEMS:
9.1 If the Goods are to be manufactured or any processes are to be applied to the
Goods by the Seller in accordance with a specification submitted by the Buyer
the Buyer shall indemnify the Seller against all loss, damage, costs, and expenses
awarded against or incurred by the Seller in connection with or paid by the Seller
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 Seller’s use of the Buyer’s specification.
9.2 The Buyer warrants that copyright in all drawings, tools, dies or other materials
supplied to the Seller for the purpose of any Contract is the property of the Buyer
and that the manufacture of products in accordance with any such drawings and/or
using any such dies tools or other materials will not constitute an infringement of
copyright, registered design, patent or other rights owned by any third party.
10. WARRANTIES AND LIABILITY:
10.1 Subject to the conditions set out below the Seller warrants that the Goods will
correspond with their specifications at the time of delivery and will be free from
defects in the material and workmanship for a period of 12 months from the date of
their initial use or 12 months from delivery whichever is the first to expire.
10.1.1 The seller (unless provided a specification and warranty requirement by the buyer) offers a 12 month warranty of up to 200,000 shots for P20 steel tooling and 500,000 shots for fully hardened tooling.
10.2 The above warranty is given by the Seller subject to the following conditions:
10.2.1 The Seller shall be under no liability in respect of any defect in the Goods arising
from any drawing, design, or specification supplied by the Buyer;
10.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear
or tear, wilful damage, negligence, abnormal working conditions, failure to follow
the Seller’s instructions (whether oral or in writing) misuse or alteration or repair
of the Goods without the Seller’s approval;
10.2.3 the Seller shall be under no liability under the above warranty (or any other
warranty condition or guarantee) if the total price for the Goods has not been
paid by the due date for payment;
10.2.4 the above warranty does not extend to parts, materials, or equipment, not
manufactured by the Seller in respect of which the Buyer shall only be entitled
to the benefit of such warranty or guarantee as is given by the manufacturer to
10.2.5 The seller reserves the right to remove any warranty offers for areas of tooling that are noted to be fragile, weak or require manufacture thatis stipulated by the buyer if these areas are highlighted either verbally or in writing to be fundamentally weak.
10.2.6 The seller reserves the right to remove any warranties offered if the buyer has failed to maintain the goods provided and cannot provide proof of a regular maintenance schedule.
10.3 Subject as expressly provided in these Conditions, and except where the Goods
are sold to a person dealing as a customer (within the meaning of the Unfair
Contract Terms Act 1977), all warranties, conditions, or other terms implied by
statute or common law are excluded to the fullest extent permitted by law.
10.4 Where the Goods are sold under a consumer transaction [as defined by the
Consumer Transactions (Restrictions on Statements) Order 1976] the
statutory rights of the Buyer are not affected by these conditions.
10.5 All Goods are carried subject to the carriers’ conditions (if any). Any claim by the
Buyer which is based on any defect in the quality or condition of the Goods or
their failure to correspond with specification shall (whether or not delivery is
refused by the Buyer) be notified in writing to the Seller and to the carriers
(if applicable) either:
(i) within the period allowed for making claims by the carriers’ conditions; or
(ii) if sooner or if there are no carriers’ conditions involved then within seven days
from the date of delivery; or
(iii) (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
If delivery is not refused, and the Buyer does not notify the Seller accordingly,
the Buyer shall not be entitled to reject the Goods and the Seller shall have no
liability for such defect or failure, and the Buyer shall be bound to pay the price
as if the Goods had been delivered in accordance with the Contract between the
Seller and the Buyer. Where Goods are accepted, they shall be deemed to be
checked and found correct unless the delivery note is signed “not examined”.
In all cases the Buyer must give the Seller forthwith upon notification the
opportunity to inspect the Goods. Time shall be of the essence in relation to this
10.6 Where any valid claim in respect of any of the Goods which is based on any
defect in the quality or condition of the Goods or their failure to meet
specifications is notified to the Seller in accordance with these conditions, the
Seller shall be entitled to replace the Goods (or the part in question) free of
charge or, at the Seller’s sole discretion, refund to the Buyer the price of the
Goods for a proportionate part of the price), but the Seller shall have no further
liability to the Buyer.
10.7 Except in respect of death or personal injury caused by the Seller’s negligence,
the Seller shall not be liable to the Buyer by reason of any representation, or any
implied warranty, condition, or other term, or any duty at common law, or under
the express terms of the Contract, for any consequential loss or damage
(whether for loss of profit or otherwise) costs, expenses, or other claims for
consequential compensation whatsoever (and whether caused by the negligence
of the Seller, its Employees or Agents or otherwise) which arise out of or in
connection with the supply of the Goods or their use or re-sale by the Buyer,
except as expressly provided in these Conditions.
10.8 The Seller shall not be liable to the Buyer 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 Seller’s obligations in relation to the Goods, if the delay or failure was due to
any cause beyond the Seller’s reasonable control (including, without prejudice to
the generality of the foregoing, strikes, lock-outs, or other industrial actions or
trade disputes whether involving employees of the Seller or of a third party).
11.1 Errors and Omissions Excepted (E&OE).
11.2 The foregoing are the terms and conditions upon which any contract is made and
any conditions, statements or warranty expressed or implied by statute, common
law or otherwise not stated herein excluded.
11.3 Should any clause contained in these terms and conditions be held to be invalid,
such invalidity will not effect the validity of the remaining clauses.
11.4 These terms and conditions shall be subject to and be construed in accordance
with English Law.
11.5 No waiver by the Seller of any breach of the Contract by the Buyer shall be
considered as a waiver of any subsequent breach of the same or any other