Terms and Conditions of Trading (“Conditions”) of TECMAN SPECIALITY MATERIALS LTD incorporated and registered in England and Wales with company number 09216154 and having its registered office at Berrington House, Berrington Road, Leamington Spa, Warwickshire, CV31 1NB, shall be referred to in these Conditions as “TECMAN”.
1. Interpretation
1.1 These Conditions apply to all contracts with customers of TECMAN for the supply of goods by TECMAN (“Goods”) and the provision of services by TECMAN (“Services”). Any goods, materials or products provided by you to TECMAN for the Services to be applied to or carried out on, shall be referred to as “Customer Materials”.
1.2 In these Conditions the definitions detailed in clause 15 shall apply and
(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 or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.3 In these Conditions YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSES 4, 8 AND 13.
2. Basis of Contract
2.1 Orders for Goods and/or Services placed with TECMAN may be placed in writing, by telephone or by email, but in all cases will be subject to TECMAN’s written acceptance. The contract between you and TECMAN will become legally binding only when TECMAN has notified you in writing of its acceptance of your order. Accepted orders will be deemed to incorporate these Conditions and thereby form the “Contract”.
2.2 The Contract overrides any other previous statements, promises, representations and undertakings given or made by TECMAN in relation to the subject matter of the Contract which are not set out in the Contract including brochures, specifications and advertising and the Contract excludes all such items and all other terms not set out in the Contract, including those implied by trade and/or custom and practice (and you acknowledge, in respect of each of the foregoing, that you have not relied on the same).
2.3 Quotations provided by TECMAN (whether written or oral) do not constitute offers and are subject to withdrawal without notice and shall automatically lapse 30 days after the date of the quotation unless otherwise agreed by TECMAN in writing.
2.4 TECMAN reserves the right to make changes to the Goods and/or Services necessary to comply with applicable law or safety requirements, or which do not materially affect the nature or quality of the Goods and/or Services.
2.5 In the event of any conflict or inconsistency between the terms of an order which is accepted by TECMAN including any terms marked by TECMAN as “Special Conditions” and these Conditions, the order which is accepted by TECMAN including any Special Conditions shall prevail, to the extent of the conflict or inconsistency only.
3 Price
3.1 Unless otherwise itemised on the order acceptance the price quoted does not include delivery. VAT will be charged in addition at the rate applying at the time of delivery of the Goods and/or performance of the Services.
3.2 Unless otherwise stated the price excludes all other taxes which may be applicable and you shall pay any such tax in addition to the price. If you are required under any applicable law to withhold or deduct any amounts from the payments due to TECMAN, you shall increase the sum you pay to TECMAN by the amount necessary to leave TECMAN with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
3.3 If the price on the order acceptance is stated to include all taxes and be delivered duty paid (DDP) the price quoted reflects the price of DDP at the time of the order acceptance. If there is a change in a component of DDP of any kind that affects the price to TECMAN
supplying DDP, (including but not limited to tariff, duty and tax) TECMAN shall have the right to vary the price to reflect the changed cost and shall at your request substantiate the price variation to you.
4 Specifications, Description and Variation
4.1 The quantity and description of Goods shall be as set out in TECMAN’s acceptance of Order. It is your responsibility to ensure that all details contained in our written acceptance are correct.
4.2 All brochures, advertisements and samples are for illustrative purposes only.
4.3 Where TECMAN supplies Goods or Services in accordance with your specifications, drawings, instructions or design outputs (“Specification”), you shall ensure that the Specification is in writing, is accurate and is provided in good time in order for TECMAN to fulfil your order. You shall ensure that any Customer Materials are suitable for the receipt of such Services in accordance with the Specification and that the Specification is fit for the purpose for which you intend to use the supplied Goods or Customer Materials.
4.4 Without prejudice to your obligations and liability under clause 4.3, where TECMAN provides any design services or gives you access to Software for the purpose of generating your own design outputs in relation to the Goods or Services you must check and confirm that your instructions have been interpreted correctly and, in such instances, TECMAN may request that you sign and return a copy of the Specification to confirm that you have ensured that the agreed design meets your Specification. You acknowledge and agree that no further Services will be provided and no Goods delivered in accordance with your order until TECMAN has received the returned signed copy of the Specification. TECMAN shall have no liability for errors in any Specification or details supplied and/ or approved by you.
4.5 You may submit to TECMAN at any time a request to vary an Order and TECMAN shall give all such requests due consideration but the decision to agree to the variation shall be at the sole discretion of TECMAN.
4.6 If TECMAN in its sole discretion decides that a variation is possible it shall forward to you a variation proposal which shall show the new specification and (if appropriate) the revised price to take account of the variation. The revised price shall take account of any wasted costs and materials that TECMAN in its sole discretion decides that it will incur.
4.7 If you agree to the variation proposal you shall reply to TECMAN in writing only confirming your acceptance to the Variation as set out on the variation proposal. It is your responsibility to ensure that the contents of the variation proposal meet your requirements.
4.8 The Variation shall not be effective as of the time that you have receive written confirmation back from TECMAN confirming that the variation has been accepted.
5 Intellectual Property Rights
5.1 The Intellectual Property Rights in any materials, Software and/or equipment, in whatever form, existing prior to the entering into of a Contract, or developed solely by one party entirely independently and unrelated to the Contract, shall be owned by the developing party.
5.2 The Intellectual Property Rights in any materials, Software and/or equipment, including drawings, designs, specifications or data, developed or produced by TECMAN in pursuance of a Contract shall remain vested in TECMAN unless specifically agreed otherwise in writing at the time of entering into the Contract.
6. Samples and Testing
6.1 TECMAN shall be entitled to charge for all samples provided to you and all testing carried out at your request. All such charges will be agreed with you in writing before TECMAN proceeds with production and supply of samples and /or testing.
7. Cancellation
7.1 TECMAN may suspend or cancel the Contract or any part of it, by written notice if:
(a) you fail to pay TECMAN any money when due (under the Contract or otherwise);
(b) you suffer an Insolvency Event.
7.2 You may only cancel the Contract or any part thereof if TECMAN agrees in writing and, in such circumstances, you shall pay to TECMAN the sums due for costs incurred up to cancellation, including:
(a) any processing and manufacturing costs;
(b) the price of specialist/customer specific goods and/or Services (including but not limited to any goods or materials that TECMAN keeps in stock but has bought in a volume to satisfy your Order);
(c) costs of failed delivery attempts; and
(d) any other costs related to the Contract which TECMAN has incurred which are notified by TECMAN to you.
8 Return of Goods
8.1 TECMAN may, at its sole discretion accept the return of Goods from you:
(a) within 30 days of the date of delivery;
(b) if TECMAN has expressly agreed to do so in writing;
(c) if the Goods are undamaged and in their original and full packaging;
(d) if the Goods are a standard stock item when you request the return;
(e) on payment of a handling charge*; and
(f) in all cases, where the Goods are as fit for sale on their return as they were on delivery.
8.2 * The handling charge will be set at TECMAN’s sole discretion, acting reasonably, and will dependant on the condition of goods and packaging and will in any event be a minimum of 20 % of the sale price inclusive of VAT.
8.3 Requests for returns are to be submitted directly to customerservice@tecmanuk.com and to be considered for return the request shall contain the following information:
• TECMAN Delivery Reference
• Date of Purchase
• No. of products to return
• Product codes
• Reason for return
• Images of items providing evidence of packaging state.
8.4 If TECMAN accepts a request for return it will send a ‘Return Request’ document to you. It is your responsibility to check the accuracy of the Return Request document. The Returns Request document shall bear a Returns Request reference.
8.5 Any Goods returned that do not bear a Returns Request reference or are not listed in the Returns Request document will not be accepted.
9 Delivery
9.1 All goods will be despatched at the sole discretion of Tecman.
9.2 Delivery times or means of transport specifically requested will normally be charged in addition to TECMAN’s normal carriage rates.
9.3 Delivery shall take place at your usual place of business unless agreed otherwise in writing with TECMAN.
9.4 TECMAN shall use its reasonable endeavours to meet any requested delivery or performance date in the Contract but any such dates and times are estimates only and time shall not be of the essence for delivery of Goods and/or performance of the Services.
9.5 You shall accept delivery of the Goods or performance of the Services after any estimated delivery or performance time given by TECMAN and delivery or performance will be deemed to have been in accordance with the Contract.
9.6 TECMAN may deliver the Goods in instalments. Each instalment is treated as a separate contract.
9.7 If delivery does not take place because you are at fault or for reasons beyond TECMAN’s control, TECMAN may store and insure the Goods at your expense. In such circumstances, TECMAN shall use reasonable endeavours to attempt to deliver the Goods, but TECMAN has the right to sell them after a period of 14 days has passed since the original delivery attempt. TECMAN may recover from the proceeds of such sale, such costs of storage and insurance together with TECMAN’s costs of attempting to deliver the Goods together with the unpaid balance of the sale price of those Goods as at the day of failed delivery. In the event that such sale proceeds are insufficient to cover such costs and sale price, TECMAN may invoice you for the shortfall, and you shall pay to TECMAN such sums in accordance with clause 10.
9.8 If you order Goods or Services with a single delivery date that has been agreed in writing by TECMAN then you may not change that date (whether by way of delay in the delivery date or a change to instalments or other staggered delivery process) without the prior written agreement of TECMAN to the change including adjustment to the price to reflect the change in delivery.
9.9 Neither TECMAN nor its carrier is responsible for unloading the Goods at your premises. You are responsible for providing, at your cost, sufficient labour and materials for unloading the Goods at your premises.
9.10 TECMAN may decline to deliver the Goods if:
(a) TECMAN believes, or its carrier believes, that it would be unsafe, unlawful or unreasonably difficult to do so; or
(b) the premises, or the access to them, are unsuitable for TECMAN’s or the carrier’s delivery vehicle. Any unforeseen additional costs resulting from any requirement of TECMAN to make repeat or abortive delivery attempts as a result of such delivery issues may be invoiced separately and must be paid for by you in accordance with clause 10.
9.11 Delivery will be deemed to have taken place:
(a) at TECMAN’s premises when you (for this clause 9.11 ‘you’ shall include but not be limited to you, your agent, carrier or freight partner) collect the Goods; or
(b) at the agreed delivery address, when you have unloaded the Goods (if TECMAN is arranging carriage); or
(c) two weeks after the date which you have been notified of as the date on which the Goods are ready for collection (‘Available Date’).
9.12 TECMAN shall have the right to levy a storage charge for any Goods from two weeks after Available Date until the date of collection or disposal.
9.13 If Goods are not collected within two calendar months of the Available Date TECMAN has the right to sell or dispose of the Goods as it sees fit. TECMAN may recover from any proceeds of a sale, outstanding payments, costs of storage and insurance . In the event that such sale proceeds are insufficient to cover any outstanding payments and costs, you shall be liable for the shortfall and you shall pay the shortfall in accordance with clause 10.
10 Payment Terms and Application for Credit
10.1 Subject to clause 10.2, you shall pay to TECMAN the price quoted for the Goods and/or Services (as applicable) in accordance with the relevant invoice issued by TECMAN, in cleared funds in agreed currency by the method agreed by the parties, on or before the time of order. If you fail to do so, TECMAN may decline to deliver the Goods and/or perform the Services and shall not be deemed to be on breach of the Contract.
10.2 There will be no option to use Credit Terms unless you have the prior written agreement of TECMAN. If Credit Terms are requested TECMAN reserves the right to require a Parent Company or Cross Company Guarantee or a Director’s Guarantee using its absolute discretion as it sees fit.
10.3 TECMAN shall use reasonable endeavours to consider an application for a credit account. TECMAN may, in its absolute discretion, decline any application for a credit account and is not obliged to give any reason for such decision.
10.4 TECMAN may, in its absolute discretion, and without liability to you, at any time and without notice, a) withdraw your credit account, b) reduce your credit limit or c) bring forward your due date for payment, and in doing so TECMAN may withdraw from a contract (even after acceptance by Us), or delay delivery under it, consistent with any change in your credit position.
10.5 By placing an order with TECMAN or applying for an TECMAN credit account, you:
(a) consent to TECMAN carrying out such credit referencing and other due diligence as it considers appropriate on an ongoing basis; and
(b) agree that you shall, on request, provide TECMAN with any and all information reasonably requested by TECMAN in relation to
your business operations and/or finances in order to ascertain your creditworthiness.
10.6 If you fail to pay TECMAN in full in accordance with clause 10.1 or 10.2 (as applicable):
(a) TECMAN may suspend or cancel future deliveries of Goods and/or provision of Services under any contract; and
(b) TECMAN may cancel any discount offered to you.
10.7 You shall pay TECMAN interest and compensation calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
10.8 If you go into arrears with a credit account TECMAN has the right to take action to recover any amount awing to TECMAN and the amount including any current amount shall be deemed as immediately payable.
10.9 You do not have the right to set off any money you may claim from TECMAN against anything you may owe TECMAN. While you owe money to TECMAN, TECMAN shall have a lien on your property in its possession.
10.10 When exporting Goods outside the United Kingdom TECMAN may, at its discretion, require you to provide an export guarantee in a form satisfactory to TECMAN and if you fail to provide the required export guarantee TECMAN may decline to deliver the Goods and/or perform the Services as applicable.
11. Title and Risk
Where you provide Customer Materials on which TECMAN performs Services under a Contract:
11.1 Subject to clause 11.3 TECMAN agrees to take all reasonable care of the Customer Materials;
11.2 You are responsible to notifying TECMAN of any special storage or handling requirements and for supplying TECMAN with a Material Safety Data Sheet in respect of the Customer Materials;
11.3 The Customer Materials will be at your risk only whilst they are in TECMAN’s possession. Subject to clause 13.10 TECMAN excludes all liability howsoever arising for loss and damage caused to the Customer Materials.
11.4 Title to the Customer Materials shall remain with you at all times during the Contract.
11.5 TECMAN may exercise a lien over the Customer Materials in its possession until such time as TECMAN has received in full:
(a) all amounts due to TECMAN under the Contract in respect of the Services; and
(b) all other sums due to TECMAN from you which are outstanding.
Where TECMAN provides Goods under a Contract:
11.6 Title to the Goods shall pass to you when TECMAN has received:
(a) all amounts due to TECMAN under the Contract in respect of the Goods and Services; and
(b) all other sums due to TECMAN from you which are outstanding.
11.7 The Goods are at your risk from the time of delivery in accordance with clause 9.
11.8 11.8 Until the date on which title to the Goods passes to you in accordance with clause 11.6, all Goods shall remain the property of TECMAN .
11.9 If you fail to pay any sums owed to TECMAN for Goods or Services provided by the due date for payment in accordance with a relevant invoice, notwithstanding TECMAN’s retention of title to the Goods pursuant to this clause 11, TECMAN has the right to take legal proceedings to recover the price of Goods/Services supplied together with interest and compensation.
12. Tooling
12.1 Job specific tooling will be charged to the you unless a separate agreement is made otherwise with TECMAN. This charge is a contribution to the tooling cost and does not transfer ownership of tooling to the you. The Company assumes full liability for repair, maintenance and ongoing replacement of tooling. If a separate agreement is put in place to transfer ownership of the tooling, you accept full liability for repair, maintenance, ongoing replacement and insurance.
13. Warranties, Indemnity and Liability
13.1 Subject to clauses 4.3 and clauses 13.2 to 13.6 and clauses 13.8 to 13.10, TECMAN warrants that:
(a) the Goods and Services will conform to the Specification; and
(b) Services will be provided with reasonable care and skill.
13.2 Save as set out in clause 13.1 TECMAN gives no other warranties and now excludes, to the fullest extent permitted by law, all warranties, terms and conditions that would otherwise be implied into the Contract, including all warranties implied by law, custom and practice and course of dealing as to the quality of Goods and/or Services and their fitness for purpose, including in respect of any Goods which TECMAN has prepared.
13.3 You are responsible for ensuring, and warrant to TECMAN that:
(a) the Specification is complete, accurate and fit for your purposes notwithstanding that you may have used the Software and/or design services provided by TECMAN;
(b) you are the owner of, or have the right to have the Services carried out on, any Customer Materials;
(c) the Services provided are suitable for your purposes;
(d) the Customer Materials are suitable to have the Services performed on them; and
(e) the Customer Materials conform to any requirement specified in the Specification or any instruction from TECMAN.
13.4 Subject to clause 13.10 TECMAN shall not be liable, whether in contract (including fundamental breach), tort (including negligence), breach of statutory duty or otherwise for any defect in the Goods or the Services which:
(a) is caused by a breach of any of the warranties given at clause 13.3;
(b) are produced to the Specification; or
(c) is caused by a defect in the Customer Materials which existed prior to the performance of the Services.
13.5 You shall inspect the Goods (including a physical check) on delivery. If any Goods are defective on delivery (or only partially delivered) and mark the advice note accordingly and you:
(a) shall inform TECMAN (in writing), with full details, before their use or resale and in any event within 24 (twenty-four) hours of delivery;
(b) shall allow TECMAN and any carrier to investigate the alleged defect or non-delivery; and
(c) TECMAN shall not be liable, whether in contract (including fundamental breach), tort (including negligence), breach of statutory duty or otherwise for any defect which would have been obvious had a reasonable inspection of the Goods been carried out by you on delivery.
13.6 If you believe that the Goods have a defect which was not discoverable at the time of delivery by a reasonable inspection you:
(a) shall inform TECMAN (in writing), with full details, within 7 days of discovering the alleged defect and in any event within 1 month of delivery; and
(b) shall allow TECMAN to investigate the alleged defect.
13.7 If, following TECMAN’s investigations, the Goods have not been delivered or any Goods or Services delivered are found not to be in accordance with clause
13.1, and you have complied in full with clauses 13.5 ,
13.6 (as applicable), TECMAN shall, at its sole option replace Goods, re-perform the Services or refund the price of the finished Goods.
13.8 Subject to clause 13.10, TECMAN shall not be liable to you or to any person claiming through you, whether in contract (including fundamental breach), tort (including negligence), breach of statutory duty or otherwise for any indirect or consequential loss, financial loss, loss of profits, loss of business revenue, loss of contracts, loss of goodwill, or loss of use arising from the Contract, any collateral contract, the supply of Goods or their use or the provision of Services. TECMAN shall have no liability to you for: the cost of installing faulty Goods, or Goods damaged as a result of failure to follow published instructions or damage caused to the Goods after delivery.
13.9 Subject to clauses 13.10, TECMAN’s liability to you for all other losses arising under or in connection with the Contract or any collateral contract, whether in contract (including fundamental breach), tort (including negligence), breach of statutory duty or otherwise
shall be limited to the price of the Goods or Services (as applicable). 13.10 Nothing in the Contract restricts or limits TECMAN’s or your liability for death or personal injury resulting from negligence, for fraud or for any other liability which may not be excluded or restricted by law.
13.11 You shall indemnify and keep indemnified TECMAN in full and on demand from all costs, proceedings, actions, claims or demands, liabilities, losses, damages and obligations which TECMAN may incur or for which TECMAN may be liable (including legal costs and expenses) arising out of or in connection with:
(a) the Specification infringing or being alleged to infringe third party Intellectual Property Rights; and/or
(b) the Specification and Goods made to the Specification not being fit for your purposes.
14. General
14.1 Any waiver of a part of the Contract is binding only if it is made (or recorded by TECMAN) in writing and expressly states an intention to waive a part of these Conditions. Such a waiver shall not be deemed to be a waiver of any subsequent breach or default.
14.2 No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.3 Any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by TECMAN and you.
14.4 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.5 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.6 If TECMAN is unable to perform its obligations to you under the Contract or any other contract between TECMAN and you (or is only able to perform them at unreasonable cost) because of a Force Majeure Event TECMAN may, without liability to you, cancel or suspend any of its obligations to you on notice. If the Force Majeure Event continues for a period of 90 days, you may terminate the Contract on notice and without liability.
14.7 In order to perform this Contract TECMAN may need to disclose your personal information to relevant third parties. TECMAN shall comply with all relevant data protection legislation and shall ensure that all such relevant third parties are contractually obliged to do so too.
14.8 If you are more than one person, each of you has joint and several obligations under the Contract.
14.9 If any of these clauses are found invalid, illegal or unenforceable as set out herein:
(a) it will not affect the enforceability of any other clause; and
(b) if it would be enforceable if amended, it will be treated as so amended and the amended clause will be deemed incorporated herein.
14.10 Any notice to a party which is to be served under the Contract, shall be in the English language, in writing and may be served by leaving it at or by delivering it to (by pre-paid post (by airmail if to an address outside the country of posting) or by fax) the other party’s registered office or principal place of business. All such notices shall be signed by an authorised signatory. Notices delivered by hand shall be deemed served on delivery, those by pre-paid post 3 days after posting (7 days if sent by airmail), provided proof of posting is available and if by fax on receipt of an answer back. For the purposes of this clause “writing“ shall not include emails and notice given under the Contract shall not be validly served if given by email.
14.11 No contract between you and TECMAN will create any right enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, or otherwise, by any person other than TECMAN and you.
14.12 TECMAN or you may at any time with the prior written consent of the other party assign, transfer, charge, subcontract or deal in
any other manner with all or any of its rights under the Contract . 14.13 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law and the parties irrevocably submit to the nonexclusive jurisdiction of the courts of England and Wales. The United Nations Convention on the International Sale of Goods shall not apply to the Contract.
15. Definitions
Force Majeure Event an event beyond the reasonable control of TECMAN including strikes, lock-outs, other industrial disputes (whether involving the workforce of TECMAN or any other party), failure of a utility service or transport network, act of God, accident, war, riot, civil commotion, act of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, transport delays, explosion, storm, difficulty obtaining supplies or default of suppliers or subcontractors;
Insolvency Event if you go into liquidation or a winding up petition is presented in respect of you (other than for the purpose of a solvent bona fide reconstruction) and such petition is not discharged within 7 days of its presentation or an order is made for the appointment of an administrator or documents are filed for the appointment of an administrator or notice of intention to appoint an administrator is given by you, your directors or a qualifying floating charge holder, or a receiver or administrative receiver is appointed over the whole or any part of the assets of you or you propose to enter or make any arrangement or composition with your creditors or make an application to a court for the protection of your creditors in any way, are otherwise unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986) or is the subject of any similar event in any jurisdiction;
Intellectual Property Rights all patents, rights to inventions, utility models, copyright and related rights, trade-marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right,
topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world from time to time;
Software any application used by TECMAN or provided or made available by or on behalf of TECMAN to you, whether to assist in the creation or interpretation of design outputs, design instructions and/or specifications or otherwise; you, your the person who places an order with TECMAN as set out in the order confirmation.
DOC QMS73 v1.0 | JAN 2021