STANDARD TERMS AND CONDITIONS OF SALE

 

1. INTERPRETATION

1.1 In these Conditions:

'Client' means the person named on the Quotation who has agreed to accept the Product from the Supplier in accordance with these Conditions.

'Contract' means the contract for the provision of the Product.

'Document' includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data.

'Goods' means the goods to be sold by the Supplier to the Client and referred to in the Quotation.

'Input Material' means any Documents or other materials, and any data or other information, provided by the Client relating to the Product.

'Output Material' means any Documents or other materials, and any data or other  information, provided by the Supplier relating to the Product.

'Product' means the Goods and/or the Services, as the context may require.

'Service' means the service to be provided by the Supplier to the Client and referred to in the Quotation.

'Quotation' means the sheet to which these Conditions are appended.

'Supplier' means Heat Treatment Supplies.

'Supplier's Standard Charges'  means the charges shown in the Supplier's brochure or other published literature relating to the Product from time to time.

1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.

 

2. SUPPLY OF THE PRODUCT

2.1 The Supplier shall provide the Product to the Client subject to these Conditions. Any changes or additions to the Product or these Conditions must be agreed in writing by the Supplier and the Client.

2.2 The Client shall at its own expense supply the Supplier with all the necessary Documents or other materials, and all necessary data or other information relating to the Product, within sufficient time to en-able the Supplier to provide the Product in accordance with the Contract. The Client shall ensure the accuracy of all Input Material.

2.3 The Client shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Supplier shall have no liability for any such loss or damage, however caused. All Output Material shall be at the sole risk of the Client from the time of delivery to or to the order of the Client.

2.4 The Product shall be provided in accordance with the Quotation and otherwise in accordance with the Supplier's current brochure or other published literature relating to the Product from time to time, subject to these Conditions.

2.5 Further details about the Product and advice or recommendations about its provision or utilization, which are not given in the Supplier's brochure or other promotional literature, may be made available on written request.

2.6 The Supplier may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Product without any liability to the Supplier.

2.7 The Supplier may at any time without notifying the Client make any changes to the Product which are necessary to comply with any applicable safety or other statutory requirements or which do not materially affect the nature or quality of the Product.

2.8 The Supplier's employees or agents are not authorized to make any representations concerning the Product unless confirmed by the Supplier in writing. In entering into the Contract the Client acknowledges that it does not rely on any such representations, which are not so confirmed.

 

3. CHARGES

3.1 Subject to any special terms agreed between the Supplier and the Client, the Client shall pay the Supplier's Standard Charges and any additional sums which are agreed between the Supplier and the Client for the provision of the Product or which, in the Supplier's sole discretion, are required as a result of the Client's instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client. All such payments shall, unless otherwise agreed in writing, be made in the currency of the United States.

3.2 Except as otherwise agreed in writing between the Supplier and the Client, the Client shall be liable, in addition to the Supplier's Standard Charges, to pay the costs of transportation, packaging and insurance of the Goods.

3.3 The Supplier shall be entitled to vary its charges from time to time by giving not less than one month's written notice to the Client.

3.4 All charges quoted to the Client for the provision of the Product are exclusive of any Sales Tax for which the Client shall be additionally liable at the applicable rate from time to time.

3.5 The Supplier shall be entitled to invoice the Client following the end of each month in which the Product is provided or at other times agreed with the Client.

3.6 The Supplier's Standard Charges and any additional sums payable shall be paid by the Client (together with any applicable Sales Tax, and without any set-off or other deduction) not later than 30 days after the date of the Supplier's invoice.

3.7 If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have:-

3.7.1 to charge Interest on the outstanding amount (both before and after any judgment) at the rate of 1.5% per month or the maximum rate allowed by law until the outstanding amount is paid in full; and/or

3.7.2 to cancel the Contract or suspend the provision of any further Product to the Client; and/or

3.7.3 to payment by the Client for all legal and other costs incurred by the Supplier in seeking to en-force payment.

 

4. DELIVERY OF GOODS

4.1 Delivery of the Goods shall be made by the Client collecting the Goods at the Supplier's premises at any time after the Supplier notifies the Client that the Goods are ready for collection or, if some other place for delivery is agreed by the Supplier, by the Supplier delivering the Goods to that place.

4.2 Any dates quoted for delivery of the Goods are approximate only and the Supplier shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Supplier in writing. The Goods may be delivered by the Supplier in advance of the quoted delivery date upon giving reasonable notice to the Client.

4.3 If the Supplier fails to deliver the Goods (or any installment) for any reason other than any cause beyond the Supplier's reasonable control or the Client's fault, and the Supplier is accordingly liable to the Client, the Supplier's liability shall be limited to the excess (if any) of the cost to the Client (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

4.4 If the Client fails to take delivery of the Goods or fails to give the Supplier adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Client's reasonable control or by reason of the Supplier's fault) then, without prejudice to any other right or remedy available to the Supplier, the Supplier may:-

4.4.1 store the Goods until actual delivery and charge the Client for the reasonable costs (including insurance) of storage; or

4.4.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Client for the excess over the price under the Contract or charge the Client for any shortfall below the price under the Contract.

 

5. RISK AND PROPERTY IN GOODS

5.1 Risk of damage to or loss of the Goods shall pass to the Client:-

5.1.1 In the case of Goods to be delivered at the Supplier's premises, at the time when the Supplier notifies the Client that the Goods are available for collection; or

5.1.2 In the case of Goods to be delivered otherwise than at the Supplier's premises, at the time of delivery or, if the Client wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods.

5.2 Notwithstanding delivery of 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 Client until the Supplier 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 Supplier to the Client for which payment is then due.

5.3 Until such time as the property in the Goods passes to the Client, the Client shall hold the Goods as the Supplier's fiduciary agent and bailee, and shall keep the Goods separate from those of the Client and third parties and properly stored, protected and insured and identified as the Supplier's property.

5.4 Until such time as the property in the Goods passes to the Client, the Supplier shall be entitled at any time to require the Client to deliver up the Goods to the Client and, if the Supplier fails to do so forth-with, to enter upon any premises of the Client or any third party where the Goods are stored and repossess the Goods.

5.5.1 The Client shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier but if the Client does so all moneys owing by the Client to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.

 

6 RIGHTS IN INPUT MATERIAL AND OUTPUT MATERIAL

6.1 The property and any copyright or other intellectual property rights in:-

6.1.1 any Input Material shall belong to the Client;

6.1.2  any Output Material shall, unless otherwise agreed in writing between the Client and the Supplier, belong to the Supplier, subject only to the right of the Client to use the Output Material for the purposes of utilizing the Product.

6.2 Any Input Material or other information provided by the Client which is so designated by the Client shall be kept confidential by the Supplier, and all Output Material or other information provided by the Supplier which is so designated by the Supplier shall be kept confidential by the Client; but the foregoing shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.

6.3 The Client warrants that any Input Material and its use by the Supplier for the purpose of providing the Product will not infringe the copyright or other rights of any third party, and the Client shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.

6.4.1 Subject to paragraph 6.3, the Supplier warrants that any Output Material and its use by the Client for the purposes of utilizing the Product will not infringe the copy-right or other rights of any third party, and the Supplier shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such infringement.

 

7. WARRANTIES AND LIABILITY

7.1 The Supplier warrants to the Client that the Specified Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification and at the intervals and within the times referred to in the Quotation. Where the Supplier supplies in connection with the provision of the Specified Service any goods (including Output Material) supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.

7.2 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.

7.3 The Supplier warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve months from the date of their initial use or twelve months from delivery, whichever is the first to expire.

7.4 Any claim by the Client which is based on the quality or condition of the Goods or their failure to correspond with their specification shall (whether or not delivery is refused by the Client) be notified to the Supplier in writing within seven days from the date of delivery or (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 Client does not notify the Supplier accordingly, the Client shall not be entitled to reject the Goods and the Supplier shall have no liability for such defect or failure, and the Client shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

7.5 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 specification is notified to the Supplier in accordance with these Conditions, the Supplier shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Supplier's sole discretion, refund to the Client the price of the Goods (or a proportion-ate part of the price) but the Supplier shall have no further liability to the Client.

7.6 Except in respect of death or personal injury caused by the Supplier's negligence, or as expressly provided in these Conditions, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Product or its use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier's charges for the Product, except as expressly provided in these Conditions.

7.7 The Supplier shall not be liable to the Client 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 Supplier's obligations in relation to the Product, if the delay or failure was due to any cause beyond the Supplier's reasonable control.

 

8. TERMINATION

Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm)becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.

 

9. GENERAL

9.1 These Conditions (together with the terms, if any, set out in the Quotation) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

9.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

9.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

9.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

9.5 The Laws of the State of Texas shall apply to the Contract and to these Conditions. Any legal filing, mediation or other legal matter shall be done in Houston, Texas.