Terms & Conditions

Metalcraft Direct Ltd Terms and Conditions for the Purchase of Goods and Services
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Metalcraft Direct Ltd Terms and Conditions for the Purchase of Goods

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Metalcraft Direct Ltd Terms and Conditions for the Purchase of Services

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Metalcraft Direct Ltd Terms and Conditions for the Supply of Goods and Services

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Please find below the complete Terms and Conditions for Metalcraft Direct Ltd

Metalcraft Direct Ltd Terms and Conditions for the Purchase of Goods and Services

1.Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions:

“Business Day“ a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Charges“ the charges payable by Metalcraft for the supply of the Services in accordance with clause 6 (Charges and payment).

“Commencement Date“ has the meaning given in clause 2.2.

“Conditions” these terms and conditions as amended from time to time in accordance with clause 18.9

“Contract“ the contract between Metalcraft and the Supplier for the supply of Services in accordance with these Conditions.

“Control“ shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

“Data Protection Legislation“ the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including the privacy of electronic communications).

“Deliverables” all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

“Delivery Date” the date specified in the Order, or, if none is specified, within 14 days of the date of the Order.

“Delivery Location” the address for delivery of Goods as set out in the Order.

“Force Majeure Event” any circumstance not within a party’s reasonable control, including:

(a) acts of God, flood, drought, earthquake or other natural disaster;

(b) epidemic or pandemic;

(c) 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;

“Force Majeure Event“ ;

(d) nuclear, chemical or biological contamination or sonic boom;

(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;

(f) collapse of buildings, fire, explosion or accident;

(g) 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); and

(h) 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 related plans and drawings, that is agreed in writing by Metalcraft and the Supplier.

“Intellectual Property Rights“ patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Metalcraft” Metalcraft Direct Ltd, incorporated in England under company number 14636554 and having its registered office at 35 Ballards Lane, London, N3 1XW, United Kingdom.

“Metalcraft Materials” has the meaning set out in clause 5.3(j).

1.Interpretation

The following definitions and rules of interpretation apply in these Conditions.

“Order” Metalcraft’s order for the supply of Goods and/or Services, as set out in Metalcraft’s purchase order form.

“Services” the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.

“Service Specification” the description or specification for Services agreed in writing by Metalcraft and the Supplier.

“Supplier” the person or firm from whom Metalcraft purchases the Goods and/or Services.

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its successors and permitted assigns.

(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(e) A reference to writing or written includes fax and emails.

2. Basis of contract

2.1 The Order constitutes an offer by Metalcraft to purchase Goods and/or Services from the Supplier in accordance with these Conditions..

2.2 The Order shall be deemed to be accepted on the earlier of:

(a) the Supplier issuing written acceptance of the Order; or

(b) any act by the Supplier consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.4 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.

2.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.

3. Supply of Goods

3.1 The Supplier shall ensure that the Goods shall:

(a) correspond with their description and any applicable Goods Specification;

(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Metalcraft, expressly or by implication, and in this respect Metalcraft relies on the Supplier’s skill and judgement;

(c) where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and

(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.

3.3 Metalcraft may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.

3.4 If following such inspection or testing Metalcraft considers that the Goods do not comply or are unlikely to comply with the Supplier’s undertakings at clause 3.1, Metalcraft shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.5 Metalcraft may conduct further inspections and tests after the Supplier has carried out its remedial actions.

4. Delivery of Goods

4.1 The Supplier shall ensure that:

(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(c) it states clearly on the delivery note any requirement for Metalcraft to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.

4.2 The Supplier shall deliver the Goods:

(a) on the Delivery Date;

(b) at the Delivery Location; and

4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location and upon the Goods being signed for as received by Metalcraft’s representative.

4.4 If the Supplier:

(a) delivers less than 95% of the quantity of Goods ordered, Metalcraft may reject the Goods; or

(b) delivers more than 105% of the quantity of Goods ordered, Metalcraft may at its sole discretion reject the Goods or the excess Goods,

and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Metalcraft accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.

4.5 The Supplier shall not deliver the Goods in instalments without Metalcraft’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Metalcraft to the remedies set out in clause 6.1.

4.6 Title and risk in the Goods shall pass to Metalcraft on completion of delivery.

5. Supply of Services

5.1 The Supplier shall from the Commencement Date and for the duration of the Contract supply the Services to Metalcraft in accordance with the terms of the Contract.

5.2 The Supplier shall meet any performance dates for the Services specified in the Order or that Metalcraft notifies to the Supplier and time is of the essence in relation to any of those performance dates.

5.3 In providing the Services, the Supplier shall:

(a) co-operate with Metalcraft in all matters relating to the Services, and comply with all instructions of Metalcraft;

(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;

(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;

(d) ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that Metalcraft expressly or impliedly makes known to the Supplier;

(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;

(f) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Metalcraft, will be free from defects in workmanship, installation and design;

(g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;

(h) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services;

5. Supply of Services

5.3 (i) observe all health and safety rules and regulations and any other security requirements that apply at any of Metalcraft’s premises;

(j) hold all materials, equipment and tools, drawings, specifications and data supplied by Metalcraft to the Supplier (Metalcraft Materials) in safe custody at its own risk, maintain Metalcraft Materials in good condition until returned to Metalcraft, and not dispose or use Metalcraft Materials other than in accordance with Metalcraft’s written instructions or authorisation;

(k) not do or omit to do anything which may cause Metalcraft to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that Metalcraft may rely or act on the Services; and

(l) comply with any additional obligations as set out in the Service Specification.

6. Metalcraft’s remedies

6.1 If the Supplier fails to deliver the Goods by the applicable date or to perform the Services by the applicable date, or both, Metalcraft shall, without limiting or affecting other rights or remedies available to it, have any one or more of the following rights and remedies:

(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;

(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;

(c) to recover from the Supplier any costs incurred by Metalcraft in obtaining substitute goods and/or services from a third party;

(d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and

(e) to claim damages for any additional costs, loss or expenses incurred by Metalcraft which are in any way attributable to the Supplier’s failure to meet such dates.

6.2 If the Goods are not delivered by the applicable date or the Services are not performed by the applicable date, or both, Metalcraft may, at its option, claim or deduct 10% of the price of the Goods for each week’s delay in delivery of the Goods and/or claim or deduct 10% of the price of the Services for each week’s delay in performance of the Services, in each case by way of liquidated damages, until the earlier of delivery of the Goods or performance of the Services, as applicable, or termination or abandonment of the Contract by Metalcraft, up to a maximum of 30% of the total price of the Goods (in respect of late delivery of the Goods) and up to a maximum of 30% of the total price of the Services (in respect of late performance of the Services). If Metalcraft exercises its rights in respect of late delivery under this clause 6.2 it shall not be entitled to any of the remedies set out in clause 6.1 in respect of the late delivery of the Goods. If Metalcraft exercises its rights in respect of late performance under this clause 6.2 it shall not be entitled to any of the remedies set out in clause 6.1 in respect of the late performance of the Services.

6.3 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, Metalcraft shall have one or more of the following rights and remedies, whether or not it has accepted the Goods:

(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;

6.3. Metalcrafts’s Remedies

(b) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;

(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);

(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;

(e) to recover from the Supplier any expenditure incurred by Metalcraft in obtaining substitute goods from a third party; and

(f) to claim damages for any additional costs, loss or expenses incurred by Metalcraft arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.

6.4 If the Supplier has supplied Services that do not comply with the requirements of clause 5.3(d) and/or clause 5.3(f) then, without limiting or affecting other rights or remedies available to it, Metalcraft shall have one or more of the following rights and remedies:

(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;

(b) to return the Deliverables to the Supplier at the Supplier’s own risk and expense;

(c) to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services [(if paid)];

(d) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;

(e) to recover from the Supplier any expenditure incurred by Metalcraft in obtaining substitute services or deliverables from a third party; and

(f) to claim damages for any additional costs, loss or expenses incurred by Metalcraft arising from the Supplier’s failure to comply with clause 5.3(d) and/or clause 5.3(f).

6.5 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement Goods supplied by the Supplier.

6.6 Metalcraft’s rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.

7. Metalcraft’s obligations

7.1 Metalcraft shall:

(a) provide the Supplier with reasonable access at reasonable times to Metalcraft’s premises for the purpose of providing the Services; and

(b) provide such necessary information for the provision of the Services as the Supplier may reasonably request.

8. Charges and payment

8.1 The price for the Goods:

(a) shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the Commencement Date; and

(b) shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by Metalcraft.

8. Charges and payment

8.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by Metalcraft, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.

8.3 In respect of the Goods, the Supplier shall invoice Metalcraft on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice Metalcraft on completion of the Services. Each invoice shall include such supporting information required by Metalcraft to verify the accuracy of the invoice, including the relevant purchase order number.

8.4 In consideration of the supply of Goods and/or Services by the Supplier, Metalcraft shall pay the invoiced amounts within 60 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.

8.5 All amounts payable by Metalcraft under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to Metalcraft, Metalcraft 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 Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.

8.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each date at 3% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from 21 days after the dispute is resolved until payment.

8.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow Metalcraft to inspect such records at all reasonable times on request.

8.8 Metalcraft may at any time, without notice to the Supplier, set off any liability of the Supplier to Metalcraft against any liability of Metalcraft to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.

If the liabilities to be set off are expressed in different currencies, Metalcraft may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Metalcraft of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.

9. Intellectual property rights

9.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Metalcraft Materials) shall be owned by the Supplier.

9. Intellectual property rights

9.2 The Supplier grants to Metalcraft, or shall procure the direct grant to Metalcraft of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding Metalcraft Materials) for the purpose of receiving and using the Services and the Deliverables.

9.3 Metalcraft grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by Metalcraft to the Supplier for the term of the Contract for the purpose of providing the Services to Metalcraft.

9.4 The Supplier acknowledges that all rights in Metalcraft Materials are and shall remain the exclusive property of Metalcraft.

10. Indemnity

10.1 The Supplier shall indemnify Metalcraft 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 Metalcraft arising out of or in connection with:

(a) any claim made against Metalcraft for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding Metalcraft Materials);

(b) any claim made against Metalcraft by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and

(c) any claim made against Metalcraft by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.

10.2 This clause 10 shall survive termination of the Contract.

11. Insurance

During the term of the Contract and for a period of 3 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance (minimum level of cover: £5 million), product liability insurance (minimum level of cover: £5 million) and public liability insurance (minimum level of cover: £5 million) to cover the liabilities that may arise under or in connection with the Contract, and shall, on Metalcraft’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

12. Confidentiality

12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.

12. Confidentiality

12.2 Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

13. Compliance with relevant laws

In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force.

14. Data protection

The parties shall comply with their respective obligations under Data Protection Legislation.

15. Termination

15.1 Without affecting any other right or remedy available to it, Metalcraft may terminate the Contract:

(a) with immediate effect by giving written notice to the Supplier if:

(i) there is a change of Control of the Supplier; or

(ii) the Supplier commits a breach of clause 13.

(b) for convenience by giving the Supplier one month’s written notice.

15.2 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:

(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(b) 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), obtaining a moratorium, 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;

15.2 (c) 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

(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

16. Consequences of termination

16.1 On termination of the Contract, the Supplier shall immediately deliver to Metalcraft all Deliverables whether or not then complete, and return all Metalcraft Materials. If the Supplier fails to do so, then Metalcraft may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

16.2 Termination or expiry of the Contract shall not affect the parties’ rights and remedies that have accrued as at 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.

16.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination [or expiry] of the Contract shall remain in full force and effect.

17. Force majeure

17.1 Provided it has complied with clause 17.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

17.2 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

17.3 The Affected Party shall:

(a) as soon as reasonably practicable after the start of the Force Majeure Event, but no later than 7 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and

(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

17.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 2 weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 1 week’s written notice to the Affected Party.18. General

18.1 Assignment and other dealings.

(a) Metalcraft may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract.

(b) The Supplier shall not assign, transfer, mortgage, charge, 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 Metalcraft.

18.2 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of Metalcraft.

If Metalcraft consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

18.3 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(i) 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

(ii) sent by fax to its main fax number or sent by email to the email address specified in the Order.

(b) Any notice or other communication shall be deemed to have been received:

(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(ii) 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

(iii) if sent by fax or 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 18.3(b)(iii), 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.

(c) 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.

18.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause 18.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. General

18.5 Waiver. Except as set out in clause 2.5, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.6 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, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

18.7 Entire agreement. 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.

18.8 Third party rights.

(a) 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.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

18.9 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 parties or their authorised representatives.

18.10 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.

18.11 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.

Metalcraft Direct Ltd Terms and Conditions for the Purchase of Goods

1.Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions:

“Business Day“ a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 15.4

“Contract” the contract between Metalcraft and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.

“Delivery Date” the date specified in the Order, or, if none is specified, within 14 days of the date of the Order.

“Delivery Location” the address for delivery of Goods as set out in the Order.

“Force Majeure Event” any circumstance not within a party’s reasonable control, including:

(a) acts of God, flood, drought, earthquake or other natural disaster;

(b) epidemic or pandemic;

(c) 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;

(d) nuclear, chemical or biological contamination or sonic boom;

(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;

(f) collapse of buildings, fire, explosion or accident;

(g) 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); and

(h) interruption or failure of utility service.

“Goods“ the goods (or any part of them) set out in the Order.

“Metalcraft” Metalcraft Direct Ltd, incorporated in England under company number 01269074 and having its registered office at 35 Ballards Lane, London, N3 1XW, United Kingdom.

“Metalcraft Materials” has the meaning set out in clause 8 (Metalcraft materials).

“Order” Metalcraft’s order for the Goods, as set out in Metalcraft’s purchase order form.”Specification” the specification for the Goods, including any related plans and drawings, that is agreed in writing by Metalcraft and the Supplier.

“Supplier” the person or firm from whom Metalcraft purchases the Goods.

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its successors and permitted assigns.

(e) A reference to writing or written includes fax and emails.

2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 The Order constitutes an offer by Metalcraft to purchase the Goods in accordance with these Conditions.

2.3 The Order shall be deemed to be accepted on the earlier of:

(a) the Supplier issuing a written acceptance of the Order; and

(b) the Supplier doing any act consistent with fulfilling the Order,

at which point the Contract shall come into existence.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.

3. The goods

3.1 The Supplier shall ensure that the Goods shall:

(a) correspond with their description and the applicable Specification;

(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by Metalcraft expressly or by implication, and in this respect Metalcraft relies on the Supplier’s skill and judgement;

3. The goods

3.1 The Supplier shall ensure that the Goods shall:

(c) where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and

(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

3.4 If following such inspection or testing Metalcraft considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at Clause

3.1, Metalcraft shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.5 Metalcraft may conduct further inspections and tests after the Supplier has carried out its remedial actions.

4. Delivery

4.1 The Supplier shall ensure that:

(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods, special storage instructions (if any); and

(c) if the Supplier requires Metalcraft to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.

4.2 The Supplier shall deliver the Goods:

(a) on the Delivery Date;

(b) at the Delivery Location; and

4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location and upon the Goods being signed for as received by Metalcraft’s representative.

4.4 If the Supplier:

(a) delivers less than 95.0% of the quantity of Goods ordered, Metalcraft may reject the Goods; or

(b) delivers more than 105.0% of the quantity of Goods ordered, Metalcraft may at its discretion reject the Goods or the excess Goods,

and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Metalcraft accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.

4.5 The Supplier shall not deliver the Goods in instalments without Metalcraft’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Metalcraft to the remedies set out in clause 5.

5. Metalcraft’s remedies

5.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, Metalcraft may exercise any one or more of the following rights and remedies:

(a) to terminate the Contract by giving written notice to the Supplier;

(b) to reject the Goods (in whole or in part) and return the rejected Goods to the Supplier at the Supplier’s own risk and expense;

(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);

(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;

(e) to recover from the Supplier any costs incurred by Metalcraft in obtaining substitute goods from a third party; and

(f) to claim damages for any other costs, loss or expenses incurred by Metalcraft which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.

5.2 If the Goods are not delivered on the Delivery Date, Metalcraft may, at its option, claim or deduct by way of liquidated damages 10% of the price of the Goods for each week’s delay in delivery until the earlier of delivery or termination or abandonment of the Contract by Metalcraft, up to a maximum of30% of the total price of the Goods. If Metalcraft exercises its rights under this Clause 5.2, it shall not be entitled to any of the remedies set out in Clause 5.1 in respect of the Goods’ late delivery (but such remedies shall be available in respect of the Goods’ condition).

5.3 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

5.4 Metalcraft’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.

6. Title and risk

Title and risk in the Goods shall pass to Metalcraft on completion of delivery.

7. Price and payment

7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date the Contract came into existence.

7.2 The price of the Goods:

(a) excludes amounts in respect of value added tax (VAT), which Metalcraft shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(b) includes the costs of packaging, insurance and carriage of the Goods.

7.3 No extra charges shall be effective unless agreed in writing with Metalcraft.

7.4 The Supplier may invoice Metalcraft for the price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, Metalcraft’s order number, the Supplier’s VAT registration number, and any supporting documents that Metalcraft may reasonably require.

Price and payment

7.5 Metalcraft shall pay correctly rendered invoices within 60 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.

7.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 3% a year above the Bank of England‘s base rate from time to time, but at 4% a year for any period when the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from 21 days after the dispute is resolved until payment.

7.7 Metalcraft may at any time, without notice to the Supplier, set off any liability of the Supplier to Metalcraft against any liability of Metalcraft to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. If the liabilities to be set off are expressed in different currencies, Metalcraft may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Metalcraft of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.

8. Metalcraft materials

The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by Metalcraft to the Supplier (Metalcraft Materials) and all rights in the Metalcraft Materials are and shall remain the exclusive property of Metalcraft. The Supplier shall keep the Metalcraft Materials in safe custody at its own risk, maintain them in good condition until returned to Metalcraft, and not dispose or use the same other than in accordance with Metalcraft’s written instructions or authorisation.

9. Indemnity

9.1 The Supplier shall keep Metalcraft indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred by Metalcraft as a result of or in connection with:

(a) any claim made against Metalcraft for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the manufacture, supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;

(b) any claim made against Metalcraft by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and

(c) any claim made against Metalcraft by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.

9.2 This clause 9 shall survive termination of the Contract.

10. Insurance

During the term of the Contract and for a period of three years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance (minimum level of cover: £5 million) and public liability insurance (minimum level of cover: £5 million) to cover the liabilities that may arise under or in connection with the Contract, and shall, on Metalcraft’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

11. Confidentiality

11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.

11.2 Each party may disclose the other party’s confidential information:

(a) 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 the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

12. Compliance with relevant laws

12.1 In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force.

12.2 Metalcraft may immediately terminate the Contract for any breach of clause 12.

13. Termination

13.1 Metalcraft may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. Metalcraft shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

13.2 Without limiting its other rights or remedies, Metalcraft may terminate the Contract with immediate effect by giving written notice to the Supplier if:

(a) the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

13.2 (b) the Supplier 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), obtaining a moratorium, 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;

(c) the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with its creditors, 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;

(d) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(e) the Supplier’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

13.3 On termination or expiry of the Contract, the Supplier shall immediately return all Metalcraft Materials. If the Supplier fails to do so, then Metalcraft may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

13.4 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at 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.

13.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

14. Force majeure

14.1 Provided it has complied with clause 14.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

14.2 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

14.3 The Affected Party shall:

(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

14. Force majeure

14.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 2 weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 1 week’s written notice to the Affected Party.

15. General

15.1 Assignment and other dealings

(a) Metalcraft may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

(b) The Supplier may not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Metalcraft.

15.2 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of Metalcraft. If Metalcraft consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

15.3 Entire agreement. 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.

15.4 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 Metalcraft.

15.5 Waiver. Except as set out in clause 2.5, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause 15.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

15.7 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(i) 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

(ii) sent by fax to its main fax number or sent by email to the email address specified in the Order.

15. General

15.7 Notices.

(b) Any notice or other communication shall be deemed to have been received:

(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(ii) 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

(iii) if sent by fax or 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 15.7(b)(iii), 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.

(c) 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

15.8 Third party rights.

(a) 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.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

15.9 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.

15.10 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.

Metalcraft Direct Ltd Terms and Conditions for the Purchase of Services

1.Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions:

“Business Day“ a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Charges“ the charges payable by Metalcraft for the supply of the Services in accordance with clause 6 (Charges and payment).

“Commencement Date“ has the meaning given in clause 2.2.

“Conditions” these terms and conditions as amended from time to time in accordance with clause 14.4

“Contract“ the contract between Metalcraft and the Supplier for the supply of Services in accordance with these Conditions.

“Control“ shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

“Force Majeure Event” any circumstance not within a party’s reasonable control, including:

(a) acts of God, flood, drought, earthquake or other natural disaster;

(b) epidemic or pandemic;

(c) 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;

“Force Majeure Event“ ;

(d) nuclear, chemical or biological contamination or sonic boom;

(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;

(f) collapse of buildings, fire, explosion or accident;

(g) 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); and

(h) interruption or failure of utility service.

“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Metalcraft” Metalcraft Direct Ltd, incorporated in England under company number 14636554 and having its registered office at 35 Ballards Lane, London, N3 1XW, United Kingdom.

“Metalcraft Materials” has the meaning set out in clause 3.3(j).

“Order” Metalcraft’s order for the supply of Services, as set out in Metalcraft’s purchase order form.

Services” the services, including any Deliverables, to be provided by the Supplier under the Contract, as set out in the Specification.

“Specification” the description or specification for the Services agreed in writing by Metalcraft and the Supplier.

“Supplier” the company or entity from whom Metalcraft purchases the Services.1.2 Interpretation:

(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Basis of contract

2.1 The Order constitutes an offer by Metalcraft to purchase Services in accordance with these Conditions.

2.2 The Order shall be deemed to be accepted on the earlier of:

(a) the Supplier issuing written acceptance of the Order; or

(b) any act by the Supplier consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date).

2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.

3. Supply of Services

3.1 The Supplier shall from the Commencement Date and for the duration of the Contract provide the Services to Metalcraft in accordance with the terms of the Contract.

3.2 The Supplier shall meet any performance dates for the Services specified in the Order or that Metalcraft notifies to the Supplier and time is of the essence in relation to any of those performance dates.

3.3 In providing the Services, the Supplier shall:

(a) co-operate with Metalcraft in all matters relating to the Services, and comply with all instructions of Metalcraft;

(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;

(d) ensure that the Services and Deliverables will conform with all descriptions, standards and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose that Metalcraft expressly or impliedly makes known to the Supplier;

(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;

3. Supply of Services

(g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;

(h) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services;

(i) observe all health and safety rules and regulations and any other security requirements that apply at any of Metalcraft’s premises;

(j) hold all materials, equipment and tools, drawings, specifications and data supplied by Metalcraft to the Supplier (Metalcraft Materials) in safe custody at its own risk, maintain the Metalcraft Materials in good condition until returned to Metalcraft, and not dispose or use the Metalcraft Materials other than in accordance with Metalcraft’s written instructions or authorisation;

(k) not do or omit to do anything which may cause Metalcraft to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that Metalcraft may rely or act on the Services; and

(l) comply with any additional obligations as set out in the Specification.

4. Metalcraft’s remedies

4.1 If the Supplier fails to perform the Services by the applicable dates, Metalcraft shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:

(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;

(b) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;

(d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided; and

(e) to claim damages for any additional costs, loss or expenses incurred by Metalcraft which are in any way attributable to the Supplier’s failure to meet such dates.

4.2 If the Services are not performed by the applicable date, Metalcraft may, at its option, claim or deduct 10% of the price of the Services for each week’s delay in performance of the Services by way of liquidated damages, up to a maximum of 30% of the total price of the Services. If Metalcraft exercises its rights in respect of late performance under this clause 4.2 it shall not be entitled to any of the remedies set out in clause 4.1 in respect of the late performance of the Services.14. Confidentiality

14.2 (b) Each party may disclose the other party’s confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14.2; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

14.3 Entire agreement. 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.

14.4 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 parties or their authorised representatives.

14.5 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.

14.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity or enforceability of the rest of the Contract. If any provision or part-provision of this Contract is deemed deleted under this clause 14.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provisions.

14.7 Notices

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(i) 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

(ii) sent by fax to its main fax number or sent by email to the email address specified in the Order.

(b) Any notice or other communication shall be deemed to have been received:

(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(ii) 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

(iii) if sent by fax or 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, 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.

(c) 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.

14.8 Third party rights.

(a) 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.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

14.9 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.

14.10 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.

Metalcraft Direct Ltd Terms and Conditions for the Supply of Goods and Services

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 13 (LIMITATION OF LIABILITY).

Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions:

“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 2.2.

“Conditions” these terms and conditions as amended from time to time in accordance with clause 17.8.

“Contract” the contract between Metalcraft and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

“Control” has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

“Customer” the person or firm who purchases the Goods and/or Services from Metalcraft; the expression “Customer” as used in these Conditions may be the end Client for whom the Goods and/or services are supplied, or may be the main contractor for the works of which the Goods and/or services form part.

“Deliverables” the deliverables set out in the Order produced by Metalcraft for the Customer.

“Delivery Location” has the meaning given in clause 4.2.

“Force Majeure Event” any circumstance not within a party’s reasonable control, including:

(a) acts of God, flood, drought, earthquake or other natural disaster;

(b) epidemic or pandemic;

(c) 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;

(d) nuclear, chemical or biological contamination or sonic boom;

(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;

(f) collapse of buildings, fire, explosion or accident;

(g) 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); and

(h) 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 Metalcraft.

“Metalcraft Materials” has the meaning given in clause 8.1(h).

“Order” the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s written acceptance of Metalcraft’s tender or quotation, or overleaf, as the case may be.

“Services” the services, including the Deliverables, supplied by Metalcraft to the Customer as set out in the Service Specification, and which may in particular include the installation of the Goods for the Customer at the Delivery Location.

“Service Specification” the description or specification for the Services provided in writing by Metalcraft to the Customer.

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors and permitted assigns.

(e) A reference to writing or written includes fax and email.

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when Metalcraft issues written acceptance of the Order, at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 Any samples, drawings, descriptive matter or advertising issued by Metalcraft and any descriptions of the Goods or illustrations or descriptions of the Services contained in Metalcraft’s catalogues or brochures 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.

2.4 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 law, trade custom, practice or course of dealing.

2.5 Any quotation or tender given by Metalcraft shall not constitute an offer, and is only valid for a period of [45] Business Days from its date of issue, unless otherwise agreed by Metalcraft in writing.

2.6 The quoted price for the Goods and/or Services allows for the preparation of working drawings only. Copies of these drawings can be supplied on request to the Client/Architect/Main Contractor/Structural Engineer/any other bodies for their inspection and written approval. Unless Metalcraft is otherwise notified, Metalcraft shall assume all details on its working drawings are approved.

2.7 All of these Conditions shall apply to the supply of both Goods and Services, except where application to one or the other only is specified.

3. Goods

3.1 The Goods are described in Metalcraft’s catalogue as modified by any applicable Goods Specification.

3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify Metalcraft 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 Metalcraft arising out of or in connection with any claim made against Metalcraft for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Metalcraft’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.

3. Goods

3.3 Metalcraft reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and Metalcraft shall notify the Customer in any such event.

3.4 Metalwork is supplied with welds left as laid and high spots cleaned off and finished as specified in the Order or as otherwise agreed with the Customer. The standard finish of one coat of red oxide paint is intended to protect the materials during transit in the UK only and Metalcraft recommends painting in a suitable oil-based paint immediately after installation is complete.

3.5 Where the Goods are or include galvanised metalwork, the quote for these Goods is on the basis that they are hot dipped galvanised to BS EN ISO 1461:1999 in accordance with commercial standards as determined by the galvanisers and are supplied to the Customer as received from the galvanisers. Where the method of manufacture or size of fabrication make it necessary to weld or connect after galvanising, such joints will be painted with cold galvanising paint.

4. Delivery of Goods

4.1 Metalcraft shall ensure that:

(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Metalcraft reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(b) it states clearly on the delivery note any requirement for the Customer to return any packaging material to Metalcraft. The Customer shall make any such packaging materials available for collection at such times as Metalcraft shall reasonably request. Returns of packaging materials shall be at Metalcraft’s expense.

4.2 Metalcraft 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 Metalcraft notifies the Customer that the Goods are ready.

4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location and upon the Goods being signed for as received by the Customer’s representative.

4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence unless expressly so agreed by Metalcraft in writing. Metalcraft 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 Metalcraft with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If Metalcraft 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. Metalcraft 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 Metalcraft with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.4. Delivery of Goods

4.6 If the Customer fails to accept delivery of the Goods within three Business Days of Metalcraft notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Metalcraft’s failure to comply with its obligations under the Contract in respect of the Goods:

(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Metalcraft notified the Customer that the Goods were ready; and

(b) Metalcraft shall store the Goods until delivery takes place, and may charge the Customer for all related costs and expenses (including insurance).

4.7 If ten Business Days after the day on which Metalcraft notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Metalcraft may (without prejudice to all or any of its other rights) resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4.8 Unless otherwise stated in the Order, Metalcraft may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. Quality of Goods

5.1 Metalcraft warrants that on delivery, and for a period of 6 months from the date of delivery (and installation, where applicable) (warranty period), the Goods shall:

(a) conform in all material respects with their description and the Goods Specification;

(b) be free from material defects in design, material and workmanship; and

(d) be fit for any purpose held out by Metalcraft and/or specified in the Order.

5.2 Subject to clause 5.3, Metalcraft shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:

(a) 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 5.1;

(b) Metalcraft is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by Metalcraft and if practical to do so) returns such Goods to Metalcraft’s place of business at Metalcraft’s cost.

5.3 Metalcraft shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:

(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow Metalcraft’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;

(c) the defect arises as a result of Metalcraft following any drawing, design or Goods Specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of Metalcraft;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; orQuality of Goods

5.3 (f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4 Except as provided in this clause 5, Metalcraft shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Metalcraft.

6. Title and risk

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the earlier of:

(a) Metalcraft receives payment in full (in cleared funds) for the Goods and any other goods that Metalcraft 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

(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Metalcraft’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Metalcraft’s behalf from the date of delivery;

(d) notify Metalcraft immediately if it becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(d); and

(e) give Metalcraft such information as Metalcraft may reasonably require from time to time relating to:

(a) the Goods; and

(b) the ongoing financial position of the Customer.

6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Metalcraft receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a) it does so as principal and not as Metalcraft’s agent; and

(b) title to the Goods shall pass from Metalcraft to the Customer immediately before the time at which resale by the Customer occurs.

6.5 At any time before title to the Goods passes to the Customer, Metalcraft may:

(a) by notice in writing, terminate the Customer’s right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and

(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. Supply of Services

7.1 Metalcraft shall supply the Services to the Customer in accordance with the Service Specification in all material respects.

7.2 Metalcraft shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order or in any written document sent by Metalcraft to the Customer, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services unless expressly so stated or accepted by Metalcraft.

7.3 Metalcraft 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 Metalcraft shall notify the Customer in any such event.

7.4 Metalcraft warrants to the Customer that the Services will be provided using reasonable care and skill.

8. Customer’s obligations

8.1 The Customer shall at the Customer’s own cost and expense:

(a) ensure that the terms of the Order and any information that the Customer provides in the Service Specification and the Goods Specification (including any drawings) are complete and accurate;

(b) obtain all necessary permissions (including planning permissions), but Metalcraft will provide its working drawings for this purpose, if required;

(c) provide for Metalcraft all necessary calculations, or instruct Metalcraft to arrange for an independent structural engineer to do so at cost plus 20%;

(d) co-operate with Metalcraft in all matters relating to the Goods and Services, and in particular shall ensure that the following are provided on site free of charge before and, where applicable, during the installation of the Goods:

(a) Power – 110 V and/or 240 V mains electricity supply;

(b) Preparation of mortices/pockets to accept metalwork and making good after installation of metalwork;

(d) Scaffolding – any works above ground floor level require suitable scaffolding to this level;

(e) Hoisting and craneage – all hoisting and cranage of materials and equipment to working level to be carried out by the Customer; and

(f) Health & Safety and Welfare – all health and safety and welfare facilities conforming to the latest British Standards, relevant Codes of Practice and complying with all legal requirements;

(e) provide all reasonably necessary protection of Metalcraft’s works prior to Metalcraft’s arrival on site;

(f) provide Metalcraft, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Metalcraft to provide the Services;8. Customer’s obligations

8.1 (g) provide Metalcraft with such information and materials as Metalcraft may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(h) prepare the Customer’s premises or other facilities for the supply of the Services (which may include the installation of the Goods);

(i) 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;

(j) comply with all applicable laws, including health and safety laws;

(k) keep all materials, equipment, documents and other property of Metalcraft (Metalcraft Materials) at the Customer’s premises in safe custody at its own risk, maintain Metalcraft Materials in good condition until returned to Metalcraft, and not dispose of or use Metalcraft Materials other than in accordance with Metalcraft’s written instructions or authorisation; and

(l) comply with any additional obligations as set out in the Service Specification and the Goods Specification.

8.2 If Metalcraft’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):

(a) without limiting or affecting any other right or remedy available to it, Metalcraft shall have the right to suspend the manufacture and/or delivery of the Goods and/or the 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 Metalcraft’s performance of any of its obligations;

(b) Metalcraft shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Metalcraft’s failure or delay to perform any of its obligations as set out in this clause 8.2; and

(c) the Customer shall reimburse Metalcraft on written demand for any costs or losses sustained or incurred by Metalcraft arising directly or indirectly from the Customer Default.

9. Charges and payment

9.1 The price for Goods:

(a) shall be the price set out in the Order or, if no price is quoted, the price set out in Metalcraft’s published price list as at the date of the Order; and

(b) shall, unless otherwise agreed in writing, be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer; and

(c) does not include any sum for weld testing, but Metalcraft can arrange for that to be carried out by an independent body at cost plus 20%.

9. Charges and payment

9.2 The charges for Services (unless included in the price for the Goods) shall be calculated on a time and materials basis:

(a) the charges shall be calculated in accordance with Metalcraft’s daily fee rates, as set out in its current price list at the date of the Contract or as otherwise specified in the Order;

(b) Metalcraft’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;

(c) Metalcraft shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2(b); and

(d) Metalcraft shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Metalcraft engages in connection with the Services, including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Metalcraft for the performance of the Services, and for the cost of any materials.

9.3 Metalcraft reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Metalcraft that is due to:

(a) any factor beyond the control of Metalcraft (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Metalcraft adequate or accurate information or instructions in respect of the Goods.

9.4 In respect of Goods, Metalcraft shall invoice the Customer on or at any time after completion of delivery, unless the Order specifies otherwise – for example, Metalcraft may require payment of a deposit when the Contract comes into existence.

9.5 In respect of Services, unless the charges for Services are included in the price of the Goods, Metalcraft shall invoice the Customer on completion of the Services.

9.6 The Customer shall pay each invoice submitted by Metalcraft:

(a) within 30 days of the date of the invoice or otherwise in accordance with any credit terms agreed by Metalcraft and confirmed in writing to the Customer; and

(b) in full and in cleared funds to a bank account nominated in writing by Metalcraft, and time for payment shall be of the essence of the Contract.

9.7 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 Metalcraft to the Customer, the Customer shall, on receipt of a valid VAT invoice from Metalcraft, pay to Metalcraft such additional amounts in respect of VAT as are chargeable on the supply of the Services and/or Goods at the same time as payment is due for the supply of the Services and/or Goods.Charges and payment

9.8 If the Customer fails to make a payment due to Metalcraft under the Contract by the due date, then, without limiting Metalcraft’s remedies under clause 14 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.8 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

9.9 All amounts due under the Contract 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).

10. Intellectual property rights

10.1 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 Metalcraft.

10.2 Metalcraft grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Goods, the Services and/or the Deliverables in the particular project only for which the Goods, the Services and/or the Deliverables are to be supplied by Metalcraft.

10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.

10.4 The Customer grants Metalcraft a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Metalcraft for the term of the Contract for the purpose of supplying the Goods and/or providing the Services to the Customer.

11. Data protection

11.1 The following definitions apply in this clause 11:

(a) Controller, Processor, Personal Data, and processing: as defined in the Data Protection Legislation.

(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

c) Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation and/or under Domestic Law.

11.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Metalcraft is the Processor.

11.4 Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to Metalcraft and/or lawful collection and/or processing of the Personal Data by Metalcraft on behalf of the Customer for the duration and purposes of the Contract.

12. Confidentiality

12.2 Each party may disclose the other party’s confidential information:

(

a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3 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 the Contract.

13. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

13.1 Metalcraft has obtained product liability insurance cover and professional indemnity insurance cover in respect of its own legal liability for claims not exceeding a total of £5 million during any one period of insurance. The limits and exclusions in this clause reflect the insurance cover Metalcraft has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

13.2 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

13.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

13.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation;

(c) 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

(d) defective products under the Consumer Protection Act 1987.

13.5 Subject to clause 13.4, Metalcraft’s total liability to the Customer shall not exceed £1 million.

13.6 The amounts awarded or agreed to be paid under any of these Conditions shall count towards the cap on Metalcraft’s liability under clause 13.5.

Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

13.7 This clause 13.7 sets out specific heads of excluded loss and exceptions from them:

(a) Subject to clause 13.4, the types of loss listed in clause 13.7(c) are wholly excluded by the parties, but the types of loss listed in clause 13.7(d) are not excluded.

(b) If any loss falls into one or more of the categories in clause 13.7(c) and also falls into a category in clause 13.7(d), then it is not excluded.

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

(d) The following types of loss and specific loss are not excluded:

(a) sums paid by the Customer to Metalcraft pursuant to the Contract, in respect of any Goods or Services not provided in accordance with the Contract;

(b) wasted expenditure;

(c) additional costs of procuring and implementing replacements for, or alternatives to, Goods or Services not provided in accordance with the Contract. These include consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials;

(d) losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of Metalcraft. For these purposes, third party claims shall include demands, fines, penalties, actions, investigations or proceedings, including those made or commenced by subcontractors, Metalcraft’s personnel, regulators and customers of the Customer.

13.8 Metalcraft has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. 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.

13.9 This clause 13 shall survive termination of the Contract.

14. Termination

14.1 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:

(a) 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 [14] days after receipt of notice in writing to do so;

(c) 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

(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

14.2 Without affecting any other right or remedy available to it, Metalcraft may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or

(b) there is a change of Control of the Customer.

14.3 Without affecting any other right or remedy available to it, Metalcraft may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Metalcraft 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 14.1(b) to clause

14.1(d), or Metalcraft reasonably believes that the Customer is about to become subject to any of them.

15. Consequences of termination

15.1 On termination of the Contract:

(a) the Customer shall immediately pay to Metalcraft all of Metalcraft’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Metalcraft shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall return all of Metalcraft Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then Metalcraft may enter the Customer’s premises or facilities 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.

15.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

Consequences of termination

15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

16. Force majeure

16.1 Provided it has complied with clause 16.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

16.2 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

16.3 The Affected Party shall:

(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

16.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 2 weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 1 week’s written notice to the

Affected Party.

17. General

17.1 Assignment and other dealings

(a) Metalcraft 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.

(b) 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 Metalcraft.

17.2 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(a) 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

(b) sent by fax to its main fax number or sent by email to the address specified in the Order.General

17.2 Notices.

(b) Any notice or communication shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

(b) 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

(c) if sent by fax or 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 17.2(b)(iii), 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.

(c) 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.

17.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause

17.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

17.4 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.

17.5 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, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. 17.6 Entire agreement.

(a) 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.

(b) 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.

17.7 Third party rights.

(a) 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.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

17.9 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.

17.10 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.