The Customer's attention is particularly drawn to the provisions of clause 11.
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply
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 set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in
accordance with clause 14.7.
Contract: the contract between the Supplier and the Customer for the supply
of the Machine and Services in accordance with these Conditions.
Customer: the person or firm who purchases the Machine and Services from
the Supplier.
Delivery Location: has the meaning set out in clause 4.1.
Force Majeure Event: has the meaning given to it in clause 13.1.
Machine: the machinery, equipment, parts and/or tooling described in the
quotation.
Machine Specification: any specification for the Machine that is set out in the
quotation.
Order: the Customer's order for the supply of the Machine and Services, as set
out in the quotation or in the Customer’s purchase order form (as the case may
be).
Services: the installation and commissioning services together with the
servicing and maintenance service (if applicable) and the training service (if
applicable) supplied by the Supplier to the Customer as described in the
quotation.
Supplier: CNC International Services Ltd registered in England and Wales with
company number 12848135.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives,
successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such
statute or statutory 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;
1.2.4 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; and
1.2.5 a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase the Machine and
Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier either issues
written acceptance of the Order or starts to fulfil the Order, at which point and
on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The
Customer acknowledges that it has not relied on any statement, promise,
representation, assurance or warranty made or given by or on behalf of the
Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier
and any descriptions of the Machine or illustrations or descriptions of the
Services contained in the Supplier's catalogues or brochures are issued or
published for the sole purpose of giving an approximate idea of the Services
and Machine described in them. They shall not form part of the Contract or
have any contractual force.
2.5 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.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only
valid for the period stated on the quotation.
2.7 All of these Conditions shall apply to the supply of both the Machine and
Services except where application to one or the other is specified.
3. THE MACHINE
3.1 The Machine is described in the Supplier's catalogue, as modified by any
applicable Machine Specification, OR the Machine Specification.
3.2 The Supplier reserves the right to amend the Machine Specification if required
by any applicable statutory or regulatory requirements.
4. DELIVERY OF THE MACHINE
4.1 The Supplier shall deliver the Machine 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 Machine is ready.
4.2 Delivery of the Machine shall be completed on the completion of loading of the
Machine at the Delivery Location.
4.3 Any dates quoted for delivery of the Machine 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 Machine 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 Machine.
4.4 If the Supplier fails to deliver the Machine, its liability shall be limited to the costs
and expenses incurred by the Customer in obtaining a replacement machine of
similar description and quality in the cheapest market available, less the price
of the Machine. The Supplier shall have no liability for any failure to deliver the
Machine to the extent that such failure is caused by a Force Majeure Event the
Customer's failure to provide the Supplier with adequate delivery instructions
for the Machine or any relevant instruction related to the supply of the Machine.
4.5 If the Customer fails to accept or take delivery of the Machine within 5 Business
Days of the Supplier notifying the Customer that the Machine is ready, then
except where such failure or delay is caused by a Force Majeure Event or by
the Supplier's failure to comply with its obligations under the Contract in respect
of the Machine:
4.5.1 delivery of the Machine shall be deemed to have been completed at
9.00 am on the fifth Business Day following the day on which the
Supplier notified the Customer that the Machine was ready; and
4.5.2 the Supplier shall store the Machine until delivery takes place, and
charge the Customer for all related costs and expenses (including
insurance).
4.6 If 30 Business Days after the Supplier notified the Customer that the Machine
was ready for delivery the Customer has not taken delivery of it, the Supplier
may resell or otherwise dispose of part or all of the Machine.
5. TITLE AND RISK
5.1 The risk in the Machine shall pass to the Customer on completion of delivery.
5.2 Title to the Machine shall not pass to the Customer until the Supplier receives
payment in full (in cash or cleared funds) for the Machine in which case title to
the Machine shall pass at the time of payment.
5.3 Until title to the Machine has passed to the Customer, the Customer shall:
5.3.1 store the Machine separately from all other machines held by the
Customer so that they remain readily identifiable as the Supplier's
property;
5.3.2 not remove, deface or obscure any identifying mark on or relating to
the Machine;
5.3.3 maintain the Machine in satisfactory condition and keep them insured
against all risks for their full price on the Supplier's behalf from the
date of delivery;
5.3.4 notify the Supplier immediately if it becomes subject to any of the
events listed in clause 12.1.2 to clause 12.1.11; and
5.3.5 give the Supplier such information relating to the Machine as the
Supplier may require from time to time.
5.4 If before title to the Machine passes to the Customer the Customer becomes
subject to any of the events listed in clause 12.1.2 to clause 12.1.11, then,
without limiting any other right or remedy the Supplier may have the Supplier
may at any time:
5.4.1 require the Customer to deliver up the Machine; and
5.4.2 if the Customer fails to do so promptly, enter any premises of the
Customer or of any third party where the Machine is stored in order to
recover it.
6. SUPPLY OF SERVICES
6.1 The Supplier shall use all reasonable endeavours to meet any performance
dates for the Services specified in the Order, but any such dates shall be
estimates only and time shall not be of the essence for the performance of the
Services.
6.2 The Supplier shall have the right to make any changes to the Services which
are necessary to comply with any applicable law or safety requirement, or which
do not materially affect the nature or quality of the Services, and the Supplier
shall notify the Customer in any such event.
6.3 The Supplier warrants to the Customer that the Services will be provided using
reasonable care and skill.
7. QUALITY OF THE MACHINE AND SERVICES
7.1 The Supplier warrants that on delivery, and for a period of 12 months (or as
decribed in the quotation) from the date of delivery (warranty period):
7.1.1 the Machine shall conform in all material respects with its description
and any applicable Machine Specification OR the Machine
Specification;
7.1.2 the Machine shall be free from material defects in design, material and
workmanship;
7.1.3 the Services shall be free from material defects and faults;
7.1.4 the Machine shall be of satisfactory quality (within the meaning of the
Sale of Goods Act 1979); and
7.1.5 the Machine shall be fit for any purpose held out by the Supplier.
7.2 Subject to clause 7.3, if:
7.2.1 the Customer gives notice in writing promptly upon discovery that
some or all of the Machine and/or Services do not comply with the
warranty set out in clause 7.1; and
7.2.2 the Supplier is given a reasonable opportunity of examining the
Machine;
the Supplier shall, at its option, repair or fix the defective or faulty Services, or
repair or replace the defective Machine, or refund the price of the defective
Machine and/or Services in full.
7.3 The Supplier shall not be liable for the Machine’s failure to comply with the
warranty in clause 7.1 if:
7.3.1 the Customer makes any further use of the Machine after giving a
notice in accordance with clause 7.2;
7.3.2 the defect or fault arises as a result of adjustments, repairs or
modifications carried out to the Machine otherwise than by the
Supplier or its employees, agents, consultants or sub-contractors;
7.3.3 the defect or fault arises because the Customer failed to follow the
Supplier's oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Machine or (if there are
none) good trade practice;
7.3.4 the defect or fault arises as a result of the Supplier following any
design or Machine Specification supplied by the Customer;
7.3.5 the Customer alters or repairs the Machine without the written consent
of the Supplier;
7.3.6 the defect or fault arises as a result of fair wear and tear, wilful
damage, negligence, overloading or abnormal working conditions or
is due to the effects of fire, flood or other natural disaster;
7.3.7 the Machine differs from its description OR the Machine Specification
as a result of changes made to ensure they comply with applicable
statutory or regulatory standards.
7.4 Except as provided in this clause 7, the Supplier shall have no liability to the
Customer in respect of the Machine’s failure to comply with the warranty set
out in clause 7.1.
7.5 The terms of these Conditions shall apply to any repaired or replacement
Machine supplied by the Supplier under clause 7.2.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order and (if submitted by the Customer)
the Machine Specification are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to the Services;
8.1.3 provide the Supplier, its employees, agents, consultants and
subcontractors, with free of charge access to the Delivery Location
and any other Customer's premises, office accommodation and other
facilities as reasonably required by the Supplier to provide the
Services;
8.1.4 provide the Supplier with such information and materials as the
Supplier may reasonably require to supply the Services, and ensure
that such information is accurate in all material respects;
8.1.5 prepare the Delivery Location for the supply of the Services;
8.1.6 obtain and maintain all necessary licences, permissions and consents
which may be required for the Services before the date on which the
Services are to start;
8.1.7 provide 3 phase electric (wired from socket/outlet to transformer (if
supplied) to machine tool mains input), compressed air and a suitable
supply of water/DA fluid and any other such services free of charge to
the Supplier at the Delivery Location before the date on which the
Services are to start; and
8.2 If the Supplier's performance of any of its obligations in respect of the Services
is prevented or delayed by any act or omission by the Customer or failure by
the Customer to perform any relevant obligation (Customer Default):
8.2.1 the Supplier shall without limiting its other rights or remedies have the
right to suspend performance of the Services until the Customer
remedies the Customer Default, and to rely on the Customer Default
to relieve it from the performance of any of its obligations to the extent
the Customer Default prevents or delays the Supplier's performance
of any of its obligations;
8.2.2 the Supplier shall not be liable for any costs or losses sustained or
incurred by the Customer arising directly or indirectly from the
Supplier's failure or delay to perform any of its obligations as set out
in this clause 8.2; and
8.2.3 the Customer shall reimburse the Supplier on written demand for any
costs or losses sustained or incurred by the Supplier arising directly
or indirectly from the Customer Default.
9. CHARGES AND PAYMENT
9.1 The price for the Machine and the Services shall be the price set out in the
Order. The price is inclusive of all costs and charges of packaging, insurance
and transport of the Machine to the Delivery Location.
9.2 The charges for the Services shall not include the price of spare parts or
replacement components, and the Supplier reserves the right to charge the
Customer for the supply of such materials.
9.3 The Supplier reserves the right to increase the price of the Machine and/or the
Services, by giving notice to the Customer at any time before delivery, to reflect
any increase in the cost of the supply of the Machine and/or the Services to the
Supplier that is due to:
9.3.1 any factor beyond the control of the Supplier (including foreign
exchange fluctuations, increases in taxes and duties, and increases
in labour, materials and other manufacturing costs);
9.3.2 any request by the Customer to change the delivery date(s), type of
Machine or Services ordered, or the Machine Specification; or
9.3.3 any delay caused by any instructions of the Customer in respect of the
supply of the Machine and/or the Services or failure of the Customer
to give the Supplier adequate or accurate information or instructions
in respect of the supply of the Machine and/or the Services.
9.4 Unless stated otherwise in the Order, the Supplier shall invoice the Customer
prior to the supply of the Machine and Services.
9.5 Unless stated otherwise in the Order, the Customer shall pay each invoice
submitted by the Supplier:
9.5.1 prior to the supply of the Machine and Services; and
9.5.2 in full and in cleared funds to a bank account nominated in writing by
the Supplier, and
time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer 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 the
Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice
from the Supplier, pay to the Supplier such additional amounts in respect of
VAT as are chargeable on the supply of the Machine and Services at the same
time as payment is due for the supply of the Machine and Services.
9.7 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:
9.7.1 pay interest on the overdue amount at the rate of 8% 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; and
9.7.2 fully and effectually indemnify the Supplier against all liabilities, costs,
expenses, damages and losses suffered or incurred by the Supplier
arising out of or in connection with the Supplier’s resulting failure or
inability to satisfy its payment obligations in whole or in part under the
terms of its export/import finance arrangements.
9.8 The Customer shall pay all amounts due under the Contract in full without any
set-off, counterclaim, deduction or withholding except as required by law. The
Supplier may, without limiting its other rights or remedies, set off any amount
owing to it by the Customer against any amount payable by the Supplier to the
Customer.
10. CONFIDENTIALITY
A party (receiving party) shall keep in strict confidence all technical or
commercial know-how, specifications, inventions, processes or initiatives
which are of a confidential nature and have been disclosed to the receiving
party by the other party (disclosing party), its employees, agents or
subcontractors, and any other confidential information concerning the
disclosing party's business, its products and services which the receiving party
may obtain. The receiving party shall only disclose such confidential
information to those of its employees, agents and subcontractors who need to
know it for the purpose of discharging the receiving party's obligations under
the Contract, and shall ensure that such employees, agents and subcontractors
comply with the obligations set out in this clause as though they were a party
to the Contract. The receiving party may also disclose such of the disclosing
party's confidential information as is required to be disclosed by law, any
governmental or regulatory authority or by a court of competent jurisdiction.
This clause 10 shall survive termination of the Contract.
11. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS
PARTICULARLY DRAWN TO THIS CLAUSE
11.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence
of its employees, agents or subcontractors;
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 2 of the Supply of Goods and
Services Act 1982 (title and quiet possession); or
11.1.4 breach of the terms implied by section 12 of the Sale of Goods Act
1979 (title and quiet possession).
11.2 Subject to clause 11.1:
11.2.1 the Supplier shall under no circumstances whatever 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
11.2.2 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 £5,000,000
11.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the
terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982
are, to the fullest extent permitted by law, excluded from the Contract.
11.4 This clause 11 shall survive termination of the Contract.
12. TERMINATION
12.1 Without limiting its other rights or remedies, each party may terminate the
Contract with immediate effect by giving written notice to the other party if:
12.1.1 the other party commits a material breach of its obligations under this
Contract and (if such breach is remediable) fails to remedy that breach
within 30 days after receipt of notice in writing to do so;
12.1.2 the other party suspends, or threatens to suspend, payment of its
debts or is unable to pay its debts as they fall due or admits inability
to pay its debts or (being a company or limited liability partnership) is
deemed unable to pay its debts within the meaning of section 123 of
the Insolvency Act 1986 or (being an individual) is deemed either
unable to pay its debts or as having no reasonable prospect of so
doing, in either case, within the meaning of section 268 of the
Insolvency Act 1986 or (being a partnership) has any partner to whom
any of the foregoing apply;
12.1.3 the other party commences negotiations with all or any class of its
creditors with a view to rescheduling any of its debts, or makes a
proposal for or enters into any compromise or arrangement with its
creditors other than (where a company) for the sole purpose of a
scheme for a solvent amalgamation of that other party with one or
more other companies or the solvent reconstruction of that other party;
12.1.4 a petition is filed, a notice is given, a resolution is passed, or an order
is made, for or in connection with the winding up of the other party
(being a company) other than for the sole purpose of a scheme for a
solvent amalgamation of the other party with one or more other
companies or the solvent reconstruction of that other party;
12.1.5 a creditor or encumbrancer of the other party attaches or takes
possession of, or a distress, execution, sequestration or other such
process is levied or enforced on or sued against, the whole or any part
of its assets and such attachment or process is not discharged within
14 days;
12.1.6 an application is made to court, or an order is made, for the
appointment of an administrator or if a notice of intention to appoint an
administrator is given or if an administrator is appointed over the other
party (being a company);
12.1.7 the holder of a qualifying charge over the assets of the other party
(being a company) has become entitled to appoint or has appointed
an administrative receiver;
12.1.8 a person becomes entitled to appoint a receiver over the assets of the
other party or a receiver is appointed over the assets of the other
party;
12.1.9 any event occurs, or proceeding is taken, with respect to the other
party in any jurisdiction to which it is subject that has an effect
equivalent or similar to any of the events mentioned in clause 12.1.2
to clause 12.1.8 (inclusive);
12.1.10 the other party suspends, threatens to suspend, ceases or threatens
to cease to carry on, all or substantially the whole of its business; or
12.1.11 the other party'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.
12.2 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 this Contract on the due date for
payment.
12.3 Without limiting its other rights or remedies, the Supplier may suspend the
supply of Services or the delivery of the Machine under the Contract or any
other contract between the Customer and the Supplier if the Customer fails to
pay any amount due under this Contract on the due date for payment, the
Customer becomes subject to any of the events listed in clause 12.1.2 to clause
12.1.11, or the Supplier reasonably believes that the Customer is about to
become subject to any of them.
12.4 On termination of the Contract for any reason:
12.4.1 the Customer shall immediately pay to the Supplier all of the Supplier's
outstanding unpaid invoices and interest;
12.4.2 the accrued rights and remedies of the parties as at termination shall
not be affected, including the right to claim damages in respect of any
breach of the Contract which existed at or before the date of
termination or expiry; and
12.4.3 clauses which expressly or by implication have effect after termination
shall continue in full force and effect.
13. FORCE MAJEURE
13.1 For the purposes of this Contract, Force Majeure Event means an event
beyond the reasonable control of the Supplier including but not limited to
strikes, lock-outs or other industrial disputes (whether involving the workforce
of the Supplier or any other party), failure of a utility service or transport
network, act of God, war, riot, civil commotion, malicious damage, compliance
with any law or governmental order, rule, regulation or direction, accident,
breakdown of plant or machinery, fire, flood, storm or default of suppliers or
subcontractors.
13.2 The Supplier shall not be liable to the Customer as a result of any delay or
failure to perform its obligations under this Contract as a result of a Force
Majeure Event.
13.3 If the Force Majeure Event prevents the Supplier from providing any of the
Services and/or Machine for more than four weeks, the Supplier shall, without
limiting its other rights or remedies, have the right to terminate this Contract
immediately by giving written notice to the Customer.
14. GENERAL
14.1 Assignment and other dealings.
14.1.1 The Supplier may at any time assign, transfer, mortgage, charge,
subcontract or deal in any other manner with all or any of its rights
under the Contract and may subcontract or delegate in any manner
any or all of its obligations under the Contract to any third party.
14.1.2 The Customer shall not, without the prior written consent of the
Supplier, assign, transfer, charge, subcontract, declare a trust over or
deal in any other manner with all or any of its rights or obligations
under the Contract.
14.2 Notices.
14.2.1 Any notice or other communication given to a party under or in
connection with this 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, and shall be delivered personally or sent by prepaid first-class
post or other next working day delivery service, or by commercial
courier, fax or e-mail.
14.2.2 A notice or other communication shall be deemed to have been
received: if delivered personally, when left at the address referred to
in clause 14.2.1; 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; if delivered by commercial courier, on the date and at
the time that the courier's delivery receipt is signed; or, if sent by by
fax or e-mail, one Business Day after transmission.
14.2.3 The provisions of this clause shall not apply to the service of any
proceedings or other documents in any legal action
14.3 Severance.
14.3.1 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.
14.3.2 If any provision or part-provision of this Contract is invalid, illegal or
unenforceable, the parties shall negotiate in good faith to amend such
provision so that, as amended, it is legal, valid and enforceable, and,
to the greatest extent possible, achieves the intended commercial
result of the original provision.
14.4 Waiver. A waiver of any right under the Contract or law is only effective if it is
in writing and shall not be deemed to be a waiver of any subsequent breach or
default. No failure or delay by a party in exercising any right or remedy under
the Contract or by law shall constitute a waiver of that or any other right or
remedy, nor prevent or restrict its 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.
14.5 No partnership or agency. Nothing in the Contract is intended to, or shall be
deemed to, establish any partnership or joint venture between any of the
parties, nor constitute either party the agent of another party for any purpose.
Neither party shall have authority to act as agent for, or to bind, the other party
in any way.
14.6 Third parties. A person who is not a party to the Contract shall not have any
rights to enforce its terms.
14.7 Variation. Except as set out in these Conditions, no variation of the Contract,
including the introduction of any additional terms and conditions shall be
effective unless it is agreed in writing and signed by the Supplier.
14.8 Governing law. This agreement and any dispute or claim arising out of or in
connection with it or its subject matter or formation (including non-contractual
disputes or claims) shall be governed by and construed in accordance with the
law of England and Wales.
14.9 Jurisdiction. Each party irrevocably agrees that the courts of England and
Wales shall have exclusive jurisdiction to settle any dispute or claim arising out
of or in connection with this Contract or its subject matter or formation (including
non-contractual disputes or claims).

The Customer's attention is particularly drawn to the provisions of clause 9.
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when
banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services
in accordance with clause 7.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in
accordance with clause 13.7.
Contract: the contract between the Supplier and the Customer for the supply
of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Location: the location of the Machine set out in the Order.
Machine: the EDM machinery and equipment, the description and location of
which are set out in the Order.
Normal Working Hours: the hours of 9.00 am to 5.00 pm inclusive on any
Business Day.
Order: the Customer's order for Services as described in the quotation
overleaf.
Services: the inspection, diagnosis, repair and maintenance services supplied
by the Supplier to the Customer as set out in the Specification.
Specification: the description or specification of the Services described in the
quotation overleaf.
Supplier: CNC International Services Ltd registered in England and Wales with
company number 12848135.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives,
successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such
statute or statutory 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;
1.2.4 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; and
1.2.5 a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in
accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues
written acceptance of the Order or starts to fulfil the Order at which point and
on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The
Customer acknowledges that it has not relied on any statement, promise,
representation, assurance or warranty made or given by or on behalf of the
Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the
Supplier, and any descriptions or illustrations contained in the Supplier's
catalogues or brochures, are issued or published for the sole purpose of giving
an approximate idea of the Services described in them. They shall not form part
of the Contract or have any contractual force.
2.5 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.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only
valid for the period stated on the quotation.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the
Specification in all material respects.
3.2 The Services shall be carried out by one of the Supplier’s suitably qualified and
duly authorised representatives attending at the Location at such times during
Normal Working Hours as may be agreed in advance between the Supplier and
the Customer from time to time.
3.3 If the Supplier’s representative discovers a defect in or malfunction of the
Machine in the course of routine maintenance, or if the Customer reports a
defect in or malfunction of the Machine, the Supplier’s representative will use
reasonable endeavours to repair it at the Location, but if that is not reasonably
practicable (or is not reasonably practicable in the time available during Normal
Working Hours), the Supplier’s representative will seek to make suitable
arrangements with the Customer for:
3.3.1 a further visit to be made to the Location during Normal Working Hours
for the repair of the defect or malfunction; or
3.3.2 if it is not reasonably practicable for the defect or malfunction to be
repaired otherwise, the removal of the Machine for the purposes of
repair.
3.4 The Supplier shall use all reasonable endeavours to meet any performance
dates specified in the Specification but any such dates shall be estimates only
and time shall not be of the essence for performance of the Services.
3.5 The Supplier shall have the right to make any changes to the Services which
are necessary to comply with any applicable law or safety requirement, or which
do not materially affect the nature or quality of the Services, and the Supplier
shall notify the Customer in any such event.
3.6 The Supplier warrants to the Customer that the Services will be provided using
reasonable care and skill.
4. SPARE PARTS AND REPLACEMENTS
4.1 Where the Specification includes the supply of spare parts and replacement
components, the Supplier shall use reasonable endeavours to supply spare
parts and replacement components required to maintain the Machine in good
working order. If, however, the Machine is damaged otherwise than by fair
wear and tear (as to whether such event has occurred the Supplier’s decision
will be final and binding on the Customer), the Supplier reserves the right to
charge the Customer for the supply of the Services in addition to the Charges,
as set out in clause 7.2.
4.2 The Customer acknowledges that the Supplier may not stock the relevant spare
parts or replacement components at all times. The Customer agrees that the
Supplier shall not be liable as a result of any failure or delay to perform its
obligations under this Contract if and to the extent that the delay or failure
resulting from the Supplier’s inability to obtain spare parts and/or replacement
components.
5. SERVICES NOT INCLUDED
5.1 The supply of the Services is in respect of the Machine only and does not
extend to any machinery, equipment, parts or components that are external to
the Machine including tooling, holding equipment, chillers and fire systems.
5.2 The Supplier is not obliged to provide the Services where any defect or
malfunction has, in the Supplier’s opinion, arisen as a result of:
5.2.1 the subjection of the Machine by the Customer to unusual physical
stress, or the neglect or misuse of the Machine;
5.2.2 any modification, adjustment or repair to the Machine without the
written consent of the Supplier.
5.3 If on investigation the Supplier reasonably determines that any defect in or
malfunction of the Machine is the result of any of the matters referred to in
clause 5.2, the Customer shall be liable for all costs incurred by the Supplier in
making the investigation and determining its cause in addition to the Charges,
as set out in clause 7.2.
5.4 If in the Supplier’s opinion any part of the Machine can no longer be maintained
in good working order by the provision of replacement spare parts or the whole
of the Machine is damaged beyond economic repair the Supplier reserves the
right to terminate the Contract with immediate effect, by giving written notice to
the Customer, in which case the Customer shall pay to the Supplier a fair
proportion of any charges for the Services which have not been paid for by the
Customer.
5.5 Except as expressly provided in these Conditions or as agreed between the
parties in writing, the Supplier shall have no obligation to provide any Services
to the Customer outside Normal Working Hours.
6. CUSTOMER'S OBLIGATIONS
6.1 The Customer shall:
6.1.1 ensure that the terms of the Order and any information it provides in
the Specification are complete and accurate;
6.1.2 co-operate with the Supplier in all matters relating to the Services;
6.1.3 provide the Supplier, its employees, agents, consultants and
subcontractors, with access to the Location and any other Customer's
premises, office accommodation and other facilities as reasonably
required by the Supplier;
6.1.4 provide the Supplier with such information and materials as the
Supplier may reasonably require in order to supply the Services, and
ensure that such information is accurate in all material respects;
6.1.5 prepare the Location for the supply of the Services;
6.1.6 obtain and maintain all necessary licences, permissions and consents
which may be required before the date on which the Services are to
start;
6.2 If the Supplier's performance of any of its obligations under the Contract is
prevented or delayed by any act or omission by the Customer or failure by the
Customer to perform any relevant obligation (Customer Default):
6.2.1 the Supplier shall without limiting its other rights or remedies have the
right to suspend performance of the Services until the Customer
remedies the Customer Default, and to rely on the Customer Default
to relieve it from the performance of any of its obligations to the extent
the Customer Default prevents or delays the Supplier's performance
of any of its obligations;
6.2.2 the Supplier shall not be liable for any costs or losses sustained or
incurred by the Customer arising directly or indirectly from the
Supplier's failure or delay to perform any of its obligations as set out
in this clause 6.2; and
6.2.3 the Customer shall reimburse the Supplier on written demand for any
costs or losses sustained or incurred by the Supplier arising directly
or indirectly from the Customer Default.
7. CHARGES AND PAYMENT
7.1 In consideration of the Services, the Customer shall pay to the Supplier the
charges as set out in the Order.
7.2 If the Customer requests the Supplier’s services without any reasonable
justification, or requires the Supplier to repair a defect in or malfunction of the
Machine which is not covered within the Service Specification, the Charges for
such services shall be on a time and materials basis:
7.2.1 the Charges shall be calculated in accordance with the Supplier's
standard hourly fee rates, as set out in the Order;
7.2.2 the Supplier shall be entitled to charge an overtime rate of 150 per
cent of the standard hourly fee rate on a pro-rata basis for any time
worked by individuals whom it engages on the Services outside
Normal Working Hours; and
7.2.3 the Supplier shall be entitled to charge the Customer for any expenses
reasonably incurred by the individuals whom the Supplier engages in
connection with the Services including, but not limited to, travelling
expenses, hotel costs, subsistence and any associated expenses,
and for the cost of services provided by third parties and required by
the Supplier for the performance of the Services, and for the cost of
any materials.
7.3 Unless otherwise stated in the Order, the Supplier shall invoice the Customer
upon completion of the services specified in the Order.
7.4 Unless otherwise stated in the Order, the Customer shall pay each invoice
submitted by the Supplier:
7.4.1 within 30 days of the date of the invoice; and
7.4.2 in full and in cleared funds to a bank account nominated in writing by
the Supplier, and
time for payment shall be of the essence of the Contract.
7.5 All amounts payable by the Customer under the Contract are exclusive of
amounts in respect of value added tax chargeable for the time being (VAT).
Where any taxable supply for VAT purposes is made under the Contract by the
Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice
from the Supplier, pay to the Supplier such additional amounts in respect of
VAT as are chargeable on the supply of the Services at the same time as
payment is due for the supply of the Services.
7.6 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 8% per cent 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.
7.7 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 its
other rights or remedies, set off any amount owing to it by the Customer against
any amount payable by the Supplier to the Customer.
8. CONFIDENTIALITY
A party (receiving party) shall keep in strict confidence all technical or
commercial know-how, specifications, inventions, processes or initiatives which
are of a confidential nature and have been disclosed to the receiving party by
the other party (disclosing party), its employees, agents or subcontractors,
and any other confidential information concerning the disclosing party's
business, its products and services which the receiving party may obtain. The
receiving party shall only disclose such confidential information to those of its
employees, agents and subcontractors who need to know it for the purpose of
discharging the receiving party's obligations under the Contract, and shall
ensure that such employees, agents and subcontractors comply with the
obligations set out in this clause as though they were a party to the Contract.
The receiving party may also disclose such of the disclosing party's confidential
information as is required to be disclosed by law, any governmental or
regulatory authority or by a court of competent jurisdiction. This clause 8 shall
survive termination of the Contract.
9. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS
PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence
of its employees, agents or subcontractors;
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 breach of the terms implied by section 2 of the Supply of Goods and
Services Act 1982 (title and quiet possession).
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall under no circumstances whatever 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
9.2.2 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 £1,000,000.
9.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act
1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.4 This clause 9 shall survive termination of the Contract.
10. TERMINATION
10.1 Without limiting its other rights or remedies, either party may terminate the
Contract by giving the other party one months' written notice.
10.2 Without limiting its other rights or remedies, either party may terminate the
Contract with immediate effect by giving written notice to the other party if:
10.2.1 the other party 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 that party being notified in writing to do so;
10.2.2 the other party suspends, or threatens to suspend, payment of its
debts or is unable to pay its debts as they fall due or admits inability
to pay its debts or (being a company or limited liability partnership) is
deemed unable to pay its debts within the meaning of section 123 of
the Insolvency Act 1986 or (being an individual) is deemed either
unable to pay its debts or as having no reasonable prospect of so
doing, in either case, within the meaning of section 268 of the
Insolvency Act 1986 or (being a partnership) has any partner to whom
any of the foregoing apply;
10.2.3 the other party commences negotiations with all or any class of its
creditors with a view to rescheduling any of its debts, or makes a
proposal for or enters into any compromise or arrangement with its
creditors other than (where a company) for the sole purpose of a
scheme for a solvent amalgamation of that other party with one or
more other companies or the solvent reconstruction of that other party;
10.2.4 a petition is filed, a notice is given, a resolution is passed, or an order
is made, for or in connection with the winding up of that other party
(being a company) other than for the sole purpose of a scheme for a
solvent amalgamation of that other party with one or more other
companies or the solvent reconstruction of that other party;
10.2.5 the other party (being an individual) is the subject of a bankruptcy
petition or order;
10.2.6 a creditor or encumbrancer of the other party attaches or takes
possession of, or a distress, execution, sequestration or other such
process is levied or enforced on or sued against, the whole or any part
of its assets and such attachment or process is not discharged within
14 days;
10.2.7 an application is made to court, or an order is made, for the
appointment of an administrator or if a notice of intention to appoint an
administrator is given or if an administrator is appointed over the other
party (being a company);
10.2.8 the holder of a qualifying floating charge over the assets of that other
party (being a company) has become entitled to appoint or has
appointed an administrative receiver;
10.2.9 a person becomes entitled to appoint a receiver over the assets of the
other party or a receiver is appointed over the assets of the other
party;
10.2.10 any event occurs or proceeding is taken with respect to the other party
in any jurisdiction to which it is subject that has an effect equivalent or
similar to any of the events mentioned in clause 10.2.2 to clause
10.2.9 (inclusive);
10.2.11 the other party suspends or ceases, or threatens to suspend or cease,
to carry on all or a substantial part of its business;
10.2.12 the other party'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; or
10.2.13 the other party (being an individual) dies or, by reason of illness or
incapacity (whether mental or physical), is incapable of managing his
own affairs or becomes a patient under any mental health legislation.
10.3 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 this Contract on the due date for
payment and fails to pay all outstanding amounts within 5 business days after
being notified in writing to do so.
10.4 Without limiting its other rights or remedies, the Supplier may suspend provision
of the Services 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 10.2.2) to clause 10.2.13, 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 this Contract on the due date for payment.
11. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
11.1.1 the Customer shall immediately pay to the Supplier all of the Supplier's
outstanding unpaid invoices and interest and, in respect of Services
supplied but for which no invoice has been submitted, the Supplier
shall submit an invoice, which shall be payable by the Customer
immediately on receipt;
11.1.2 the accrued rights, remedies, obligations and liabilities of the parties
as at expiry or termination shall be unaffected, including the right to
claim damages in respect of any breach of the Contract which existed
at or before the date of termination or expiry; and
11.1.3 clauses which expressly or by implication survive termination shall
continue in full force and effect.
12. FORCE MAJEURE
12.1 For the purposes of this Contract, Force Majeure Event means an event
beyond the reasonable control of the Supplier including but not limited to
strikes, lock-outs or other industrial disputes (whether involving the workforce
of the Supplier or any other party), failure of a utility service or transport
network, act of God, war, riot, civil commotion, malicious damage, compliance
with any law or governmental order, rule, regulation or direction, accident,
breakdown of plant or machinery, fire, flood, storm or default of suppliers or
subcontractors.
12.2 The Supplier shall not be liable to the Customer as a result of any delay or
failure to perform its obligations under this Contract as a result of a Force
Majeure Event.
12.3 If the Force Majeure Event prevents the Supplier from providing any of the
Services for more than four weeks, the Supplier shall, without limiting its other
rights or remedies, have the right to terminate this Contract immediately by
giving written notice to the Customer.
13. GENERAL
13.1 Assignment and other dealings.
13.1.1 The Supplier may at any time assign, transfer, mortgage, charge,
subcontract or deal in any other manner with all or any of its rights
under the Contract and may subcontract or delegate in any manner
any or all of its obligations under the Contract to any third party or
agent.
13.1.2 The Customer shall not, without the prior written consent of the
Supplier, 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.
13.2 Notices.
13.2.1 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, and shall be delivered personally, sent by pre-paid first class
post or other next working day delivery service, commercial courier,
fax or e-mail.
13.2.2 A notice or other communication shall be deemed to have been
received: if delivered personally, when left at the address referred to
in clause 13.2.1; 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; if delivered by commercial courier, on the date and at
the time that the courier's delivery receipt is signed; or, if sent by by
fax or e-mail, one Business Day after transmission.
13.2.3 The provisions of this clause shall not apply to the service of any
proceedings or other documents in any legal action.
13.3 Severance.
13.3.1 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.
13.3.2 If any provision or part-provision of this Contract is invalid, illegal or
unenforceable, the parties shall negotiate in good faith to amend such
provision so that, as amended, it is legal, valid and enforceable, and,
to the greatest extent possible, achieves the intended commercial
result of the original provision.
13.4 Waiver. A waiver of any right under the Contract or law is only effective if it is
in writing and shall not be deemed to be a waiver of any subsequent breach or
default. No failure or delay by a party in exercising 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 its 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.
13.5 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, nor
constitute either party the agent of the other for any purpose. Neither party shall
have authority to act as agent for, or to bind, the other party in any way.
13.6 Third parties. A person who is not a party to the Contract shall not have any
rights to enforce its terms.
13.7 Variation. Except as set out in these Conditions, no variation of the Contract,
including the introduction of any additional terms and conditions, shall be
effective unless it is agreed in writing and signed by the Supplier.
13.8 Governing law. This Contract, and any dispute or claim arising out of or in
connection with it or its subject matter or formation (including non-contractual
disputes or claims), shall be governed by, and construed in accordance with
the law of England and Wales.
13.9 Jurisdiction. Each party irrevocably agrees that the courts of England and
Wales shall have exclusive jurisdiction to settle any dispute or claim arising out
of or in connection with this Contract or its subject matter or formation (including
non-contractual disputes or claims).