Terms & Conditions of Sale

These terms and conditions govern every contract between you (the "Customer") and us, Daventry Metal Products Limited ("DMP"), for the provision of Goods and/or Services by us to you. These terms and conditions apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

1. GENERAL

   1. Any quotation or estimate given by DMP shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
   2. The provision of an Order constitutes an offer by you to purchase Goods or Services or Goods and Services in accordance with these terms and conditions.
   3. The Order shall only be deemed to be accepted when DMP issues written acceptance of the Order at which point and on which date the Contract shall come into existence ("Commencement Date").
   4. Any samples, drawings, descriptive matter or advertising issued by DMP and any descriptions contained in DMP's catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.

2. GOODS

   1. Any Goods included in the Order will be as described in the Goods Specification.
   2. The Customer shall indemnify DMP against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by DMP arising out of or in connection with any claim made against DMP for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with DMP's use of the Goods Specification. This clause 2.2 shall survive termination of the Contract.
   3. DMP reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and DMP shall notify the Customer in any such event.

3. DELIVERY

   1. DMP 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 DMP notifies the Customer that the Goods are ready.
   2. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
   3. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. DMP 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 DMP with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
   4. If DMP 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. DMP shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide DMP with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
   5. If the Customer fails to accept delivery of the Goods within two Business Days of DMP notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by DMP's failure to comply with its obligations under the Contract in respect of the Goods:
      1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the second Business Day following the day on which DMP notified the Customer that the Goods were ready; and
      2. DMP shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
   6. If ten Business Days after the day on which DMP notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, DMP may resell or otherwise dispose of part or all of the Goods.

4. QUALITY OF GOODS

   1. DMP warrants that on delivery, and for a period of 12 months from the date of delivery ("Warranty Period"), the Goods shall:
      1. conform in all material respects with their description the Goods Specification;
      2. be free from material defects in material and workmanship;
      3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
      4. be fit for any purpose held out by DMP.
   2. Subject to clause 4.3, DMP shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
      1. the Customer gives notice in writing 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 4.1;
      2. DMP is given a reasonable opportunity of examining such Goods; and
      3. the Customer (if asked to do so by DMP) returns such Goods to DMP's place of business at its own cost.
   3. DMP shall not be liable for the Goods' failure to comply with the warranty in clause 4.1 if:
      1. the Customer makes any further use of such Goods after giving a notice in accordance with clause 4.2;
      2. the defect arises because the Customer failed to follow DMP's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
      3. the defect arises as a result of DMP following any drawing, design or Goods Specification supplied by the Customer;
      4. the Customer alters or repairs such Goods without the written consent of DMP;
      5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
      6. the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
   4. Except as provided in this clause 4, DMP shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 4.1.
   5. These terms and conditions shall apply to any repaired or replacement Goods supplied by DMP.

5. TITLE AND RISK

   1. The risk in the Goods shall pass to the Customer on completion of delivery.
   2. Title to the Goods shall not pass to the Customer until the earlier of:
      1. DMP receives payment in full (in cash or cleared funds) for the Goods and any other goods that DMP has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all` such sums; and
      2. the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 5.4.
   3. Until title to the Goods has passed to the Customer, the Customer shall:
      1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as DMP's property;
      2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on DMP's behalf from the date of delivery;
      4. notify DMP immediately if it becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.4; and
      5. give DMP such information relating to the Goods as DMP may require from time to time.
   4. Subject to clause 5.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before DMP receives payment for the Goods. However, if the Customer resells the Goods before that time:
      1. it does so as principal and not as DMP's agent; and
      2. title to the Goods shall pass from DMP to the Customer immediately before the time at which resale by the Customer occurs.
   5. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.4, then, without limiting any other right or remedy DMP may have:
      1. the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
      2. DMP may at any time:
         1. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
         2. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6. SUPPLY OF SERVICES

   1. DMP shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
   2. DMP shall use all reasonable endeavours to meet any performance dates for the Services agreed in writing with the Customer, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
   3. DMP reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and DMP shall notify the Customer in any such event.
   4. DMP warrants to the Customer that the Services will be provided using reasonable care and skill.

7. CUSTOMER'S OBLIGATIONS

   1. The Customer shall:
      1. ensure that the terms of the Order and any information it provides in the Service Specification and/or the Goods Specification are complete and accurate;
      2. co-operate with DMP in all matters relating to the Services;
      3. provide DMP, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by DMP to provide the Services;
      4. provide DMP with such information and materials as DMP may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
      5. prepare the Customer's premises for the supply of the Services;
      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;
      7. comply with all applicable laws, including health and safety laws;
      8. keep all materials, equipment, documents and other property of DMP ("DMP Materials") at the Customer's premises in safe custody at its own risk, maintain DMP Materials in good condition until returned to DMP, and not dispose of or use DMP Materials other than in accordance with DMP's written instructions or authorisation; and
      9. comply with any additional obligations as set out in the Service Specification and the Goods Specification.
   2. If DMP'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"):
      1. without limiting or affecting any other right or remedy available to it, DMP shall 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 in each case to the extent the Customer Default prevents or delays DMP's performance of any of its obligations;
      2. DMP shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from DMP's failure or delay to perform any of its obligations as set out in this clause 7.2; and
      3. the Customer shall reimburse DMP on written demand for any costs or losses sustained or incurred by DMP arising directly or indirectly from the Customer Default.

8. CHARGES AND PAYMENT

   1. Subject always to clauses 8.2 and 8.3 below, the price for the Goods and charges for the Services (collectively the "Charges") shall:
      1. be calculated on the basis set out in the Order, quotation or estimate for the provision of the Goods and/or Services (as applicable);
      2. shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods and any expenses reasonably incurred by the individuals whom DMP engages in connection with the services (including travel, subsistence and related expenses) as well as the cost of any materials which shall be invoiced to the Customer;
      3. be exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
      4. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
   2. The Charges for Services shall be calculated on a time and materials basis:
      1. the charges shall be calculated in accordance with DMP's daily fee rates, as set out in the Order; and
      2. DMP's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days.
   3. DMP reserves the right to:
      1. increase the Charges, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods or the Services to DMP that is due to:
      2. any factor beyond the control of DMP (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      3. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods or Services Specifications; or
      4. any delay caused by any instructions of the Customer in respect of the Goods and/or Services or failure of the Customer to give DMP adequate or accurate information or instructions in respect of the Goods and/or Services.
   4. The Customer shall pay each invoice submitted by DMP within 30 days of the date of the invoice or in accordance with any credit terms agreed by DMP and confirmed in writing to the Customer.

9. INTELLECTUAL PROPERTY RIGHTS

   1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by DMP.
   2. DMP grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual licence to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
   3. The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 9.2.
   4. The Customer grants DMP a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to DMP for the term of the Contract for the purpose of providing the Services to the Customer.

10. CONFIDENTIALITY

    1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or DMP's of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.
    2. Each party may disclose the other party's confidential information:
       1. 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 this 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 10; and
       2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    3. 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 this Contract.

11. LIMITATION OF LIABILITY

    1. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
       1. death or personal injury caused by negligence;
       2. fraud or fraudulent misrepresentation;
       3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
       4. defective products under the Consumer Protection Act 1987.
    2. Subject to clause 11.1, DMP's total liability to the Customer shall not exceed the greater of:
       1. £10,000; or
       2. one hundred per cent (100%) of the total Charges paid by the Customer in respect of the Goods and/or Services supplied by DMP under the Contract in the contract year in which the breaches occurred (a contract year being a 12 month period commencing with the date of the Contract or any anniversary of it).
    3. The following types of loss are wholly excluded by the parties:
       1. loss of profits;
       2. loss of sales or business;
       3. loss of agreements or contracts;
       4. loss of anticipated savings;
       5. loss of use or corruption of software, data or information;
       6. loss of or damage to goodwill; and
       7. indirect or consequential loss.
    4. DMP has given commitments as to compliance of the Goods and Services with relevant specifications in clause 4 and clause 6. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
    5. Unless the Customer notifies DMP that it intends to make a claim in respect of an event within 6 months of the date on which the Customer became, or ought reasonably to have become aware, of the grounds for making that claim, DMP shall have no liability for that event. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
    6. This clause 11 shall survive termination of the Contract.

12. TERMINATION

    1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
       1. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
       2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
       3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
       4. the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    2. Without affecting any other right or remedy available to it, DMP 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.
    3. Without affecting any other right or remedy available to it, DMP may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and DMP if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.4, or DMP reasonably believes that the Customer is about to become subject to any of them.

13. CONSEQUENCES OF TERMINATION

    1. On termination of the Contract:
       1. the Customer shall immediately pay to DMP all of DMP's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, DMP shall submit an invoice, which shall be payable by the Customer immediately on receipt;
       2. the Customer shall return all of DMP Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then DMP may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
    2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, 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.
    3. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

14. FORCE MAJEURE

    Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by 30 days' written notice to the affected party.

15. GENERAL

    1. Assignment and other dealings
       1. DMP may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
       2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of DMP.
    2. Notices
       1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
          1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
          2. sent by email to the address given for each party in the Order or such other address for service notified to the other party in writing from time to time.
       2. Any notice shall be deemed to have been received:
          1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
          2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
          3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 15.2.2.3, "business hours" means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
       3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
    3. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 15.3 shall not affect the validity and enforceability of the rest of the Contract.
    4. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    5. Entire agreement.
       1. 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.
       2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
    6. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
    7. Variation. Except as set out in these terms and conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
    8. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
    9. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

16. INTERPRETATION

    1. The following definitions and rules of interpretation apply in these terms and conditions.
       
       "Business Day" a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
       
       "Commencement Date" has the meaning given in clause 1.3.
       
       "Contract" the contract between DMP and the Customer for the supply of Goods and/or Services in accordance with these terms and conditions.
       
       "Customer" the person or firm who purchases the Goods and/or Services from DMP.
       
       "Deliverables" the deliverables set out in the Order produced by DMP for the Customer.
       
       "Delivery Location" has the meaning given in clause 3.1.
       
       "DMP" Daventry Metal Products Limited registered in England and Wales with company number 01380188.
       
       "DMP Materials" has the meaning given in clause 7.1.8.
       
       "Force Majeure Event" means any event or circumstance not within a party's reasonable control including (without limitation):
       • acts of God, flood, drought, earthquake or other natural disaster;
       • epidemic or pandemic;
       • terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
       • any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
       • collapse of buildings, fire, explosion, accident or breakdown of any plant or other apparatus;
       • any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
       • non-performance by suppliers or subcontractors; and
       • interruption or failure of utility service.
       "Goods" the goods (or any part of them) set out in the Order.
       
       "Goods Specification" any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and DMP.
       
       "Intellectual Property Rights" patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service 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 trade secrets), and all other intellectual property rights.
       
       "Order" the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of DMP's quotation, as the case may be.
       
       "Services" the services, including the Deliverables, supplied by DMP to the Customer as set out in the Service Specification.
       
       "Service Specification" the description or specification for the Services provided in writing by DMP to the Customer.