1. General

1.1 The terms and conditions set out herein shall apply to any contract for the sale or supply of Goods or Services by TROX AITCS Limited (the Seller) to the party shown overleaf and identified as the Buyer and shall apply notwithstanding any proffering or production by the Buyer of alternative terms and/or conditions.

1.2 No variation to these terms and conditions shall be binding unless made in writing by a Director of the Seller and a valid reason therefor is given to the Buyer.

1.3 In these Conditions the following terms shall have the following meanings: “Buyer” the person who accepts a quotation given by the Seller for the supply of the Goods and/or Services or whose order for the Goods and/or services is accepted by the Seller; “Conditions” the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller; “Contract” the contract for the purchase and supply of the Goods and/or Services; “Contract” means the contract for the supply of the Goods and/or the provision of the Services ; “Goods” the Goods agreed to be supplied by the Seller; “Seller” TROX AITCS Limited (company number 5607777); “Services” the services agreed to be supplied by the Seller.

1.4 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.

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

1.6 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1998 to enforce any term of the Contract.

2. Tenders and Orders

2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation or tender of the Seller which is accepted by the Buyer or any written order or verbal order of the Buyer which is accepted by the Seller in writing, subject in either case to these Conditions which shall, subject to any variation in accordance with condition 1.2, govern the Contract to the exclusion of any other terms and conditions.

2.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods and/or the Services unless confirmed by the Seller in writing.  In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to the correction without any liability on the part of the Seller.

2.4 The Contract shall be formed upon the Buyer’s acceptance of any written quotation of the Seller, or any written order or verbal order of the Buyer which is accepted by the Seller in writing.

2.5 A tender is an offer by the Seller conditional upon the Seller approving the Buyer’s credit and therefore shall not be capable of forming a contract binding upon the Seller until such time as the credit worthiness of the Buyer has been established to the satisfaction of the Seller.

2.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller.  In the event of cancellation the Buyer shall indemnify the Seller in full against any or all losses (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Seller as a result of cancellation.

2.7 The Seller reserves the right to subcontract any order or part of any order without affecting the Seller’s direct contractual liability to the Buyer under the Contract.

2.8 If the Buyer requests a change to an order (which request must be in writing) after the order has been accepted by the Seller then the Seller will (if such request change is accepted by the Seller) be entitled to charge for all and any direct or in-direct costs occasioned by such requested change.

2.9 No tender or quotation is valid unless in writing and upon the Seller’s tender or quotation form.

3. The Goods / Services

3.1 The Seller shall use all reasonable skill and care to ensure that any Goods sold by the Seller comply with their description in any current trade literature of the Seller and shall use all reasonable skill and care in advising the Buyer upon selection of such Goods.  The Seller shall not be liable if such Goods being a component part or parts are not suitable for use with other parts purchased by the Buyer from persons other than the Seller or if such parts do not together perform in the manner required by the Buyer.  If the Seller has carried out a performance test and the Buyer has proceeded with the purchase of the Goods, the Goods shall be deemed to be fit for their purpose.

3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods and/or Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3 The quantity, quality and description of and any specification for the Goods and/or Services shall be those set out in the Seller’s written or quotation or tender  (if accepted by the Buyer) or the Buyer’s written or verbal order (if accepted by the Seller in writing).

3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller or on behalf of the Seller in accordance with a specification submitted by the Buyer, the Buyer shall fully indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for any infringement of any patent, copyright, design, trade mark or other intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.

3.5 The Seller reserves the right to make any changes in the specification of the Goods and/or Services which are required to conform with any applicable safety or other statutory requirements or, where the Goods and/or Services are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including consequential loss and loss of profit) and costs (including the cost of cancellation of any orders placed by the Seller in order to fulfil the contract, transportation and warehousing costs), damages, charges and expenses incurred by the Seller as a result of such  cancellation.

3.7 All drawings, designs, specifications and other information provided by the Seller are confidential and all rights of copyright ownership and other intellectual property rights in respect of them shall remain vested in the Seller and shall not pass to the Buyer.

4. Prices and Terms of Payment

4.1 The price of the Goods is exclusive of value added tax (which shall also be paid by the Buyer) and does not include the cost of fitting or erecting the Goods supplied.  The price of the Services is exclusive of value added tax (which shall also be paid by the Buyer).

4.2 The price of the Goods is exclusive of delivery and insurance unless otherwise agreed in writing between the Seller and the Buyer.

4.3 Payment must be made by the Buyer within 30 days of the date of the Seller’s invoice (unless otherwise agreed) without set-off and without prejudice to any other rights of the Seller.

4.4 The Seller shall be entitled to withhold supply of any further Services or, delivery of any further Goods (or any further delivery in the case of a delivery effected in instalments) in the event of the Buyer’s non-payment in full in respect of the same.  The Seller may apply any money towards any outstanding account whatsoever.

4.5 In the event Goods and/or Services are made available to the Buyer in time for the agreed supply date, but the Buyer instructs the Seller to delay actual supply, then the Seller will accept such instruction on strict condition that the invoice of the Seller shall become immediately due and payable and that furthermore, the Seller will have the option to render a storage charge in respect of Goods should.

4.6 The Buyer’s common law right of set-off, counter-claim and cross-claim in relation to this contract and any other contract between the Seller and the Buyer is hereby excluded.

4.7 The Seller shall have a lien on any property of the Buyer in his possession for any sum due to the Seller.

4.8 In accordance with clause 113 of the Housing, Grants, Construction and Regeneration Act 1996, the Seller does not accept payment to it being conditional upon the Buyer receiving payment from a third party.

5. Delivery / Supply

5.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.  Delivery of the Services shall be made in accordance with the terms of the Seller’s tender/quotation or order confirmation (as the case may be)/

5.2 Any dates quoted for delivery of the Goods and/or supply of the Services are approximate only and the Seller shall not be liable for any delay in delivery of the Goods and/or supply of the Services however caused.  Time for delivery and/or supply shall not be of the essence unless previously agreed by the Seller in writing.  The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

5.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

5.4 If the Seller fails to deliver the Goods and/or supply the Services for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods and/or Services to replace those not supplied over the price of the Goods and/or Services.

5.5 If the Buyer fails to take delivery of the Goods after 10 days or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

5.6 The Seller shall use all reasonable endeavours to meet the time for delivery of Goods and/or supply of Services but shall not be liable for delay caused by the following events;

5.6.1 the Seller not having received from the Buyer (or if appropriate from any third party) in due time any necessary instructions, information, calculations, drawings or details

5.6.2 the Seller’s inability for reasons beyond his control to secure such Goods or materials or services as are essential to meet the requirements of the Buyer.

5.7 The Seller shall not be liable to the Buyer for delay in any event in the following circumstances;

5.7.1 if the Buyer is entitled to any extension of time for completion of any works pursuant to any contract the Buyer has with a third party

5.7.2 if the Buyer would have been delayed in his performance of any other contract in any event due to the act or omission of any other person.

5.8 The Buyer shall not return any Goods to the Seller without the Seller’s prior written authorisation and in any event any such return shall be made at the sole risk and expense of the Buyer.

5.9 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made.  Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.

5.10 Where the Goods are supplied for export from the United Kingdom, the provision of clauses 5.9 to 5.13 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.

5.11 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.

5.12 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered ex works and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

5.13 The Buyer shall be responsible for arranging for their testing and inspection of the Goods at the Seller’s premises if required before shipment.  The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

6. Risk and Property

6.1 The Buyer shall take delivery of the Goods at the Seller’s works unless otherwise agreed in writing.

6.2 The risk in the Goods supplied by the Seller to the Buyer shall pass to the Buyer either

6.2.1 at the time when the Goods leave the Seller’s works, or

6.2.2 within 7 days of the date of notification by the Seller to the Buyer that the Goods are ready for collection, whichever is the earlier date and whether the Seller arranges transportation for the Goods or not.

6.3 Prior to the Buyer collecting the Goods, the Seller may at his absolute discretion store the Goods anywhere at the Buyer’s risk and expense.

6.4 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these terms and conditions the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.

6.5 Until such time as the property in the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from these of the Buyer and third parties and stored in dry and clean conditions and insured and identified as the Seller’s property.

6.6 If Goods supplied by the Seller whether in their original state or mixed or processed or otherwise are sold by the Buyer prior to any payment of any monies due from the Buyer to the Seller the monies received by the Buyer shall be received by him in trust for the Seller to the extent of the Buyer’s indebtedness to the Seller and shall without prejudice to any other claim or right of the Seller against the Buyer be paid over to the Seller forthwith upon receipt by the Buyer.

6.7 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller  shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and reposess the Goods.

7. Force Majeure

7.1 In the event that performance of any part of the contract is affected by any unforeseen circumstances whatsoever or any cause beyond the Seller’s reasonable control the Seller may delay suspend or terminate performance of the contract or any part thereof.  The Seller shall be under no liability whatsoever for any loss or damage arising in any way out of such delay suspension or termination of the contract or any part thereof.

8. Warranties / Liability

8.1 Every description or specification of the Goods and, if any, the Services, is given in good faith but any conditions or warranties expressed or implied that the Goods  and/or Services shall correspond with such description or specification are hereby expressly excluded and the use of any such description or specification shall not constitute a sale by description.

8.2 The Seller warrants to the Buyer that, in respect of Goods manufactured by it, the Goods will in all material respects correspond with their specification at the time of delivery and will be free from material defects in material and workmanship for the period from delivery noted in the Seller’s tender / quotation or written order confirmation (or, if no period is stated, a period of 2 months from the date of delivery).

8.3 The Seller warrants that the Services (if any) will be supplied with reasonable skill and care.

8.4 Save as set out above, any conditions or warranties (whether express or implied by statute, common law or arising from conduct or a previous course of dealing or trade, custom or usage) as to the quality or fitness of the Goods and/or Services for any particular purpose, even if that purpose is made known expressly or by implication to the Seller, are hereby expressly excluded.

8.5 The Buyer shall take the Goods at its own risk as to their corresponding with the sample or as to their condition or sufficiency for any purpose.

8.6 Without prejudice to any other provision of these Conditions of Contract the liability of the Seller to the Buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to, and in no circumstances shall exceed, the price of the Goods or, where relevant, the Services.

8.7 Notwithstanding anything else contained in these Conditions (and without limiting the Seller’s liability in respect of injury to or death of any person caused by any negligent act or omission or wilful misconduct of the Seller, its employees or sub-contractors), the Seller shall not be liable to the Buyer for any loss of profits, goodwill or any type of special, indirect or consequential loss whether arising from negligence, breach of contract or otherwise howsoever.

8.8 Nothing in these Conditions shall have the effect of excluding or restricting any liability of the Seller for death or personal injury resulting from its negligence (as defined in Section 1(1) of the Unfair Contract Terms Act 1977) or the negligence (as so defined) of those for whose acts or omissions it is vicariously liable.

8.9 The Seller shall be under no liability in respect of any defect in or failure in performance of the Goods arising from any drawing design or specification supplied by the Buyer.

8.10 The Seller shall be under no liability in respect of any defect arising from wilful damage and/or negligence by the Buyer or another user of the Goods and/or Services and/or failure to follow the Seller’s instructions and/or misuse or alteration of the Goods without the Seller’s written approval.

8.11 The Buyer shall ensure compliance with all applicable bye-laws and is deemed to be aware of the same at the time of order of Goods from the Seller.

8.12 Any claim which the Buyer intends to make against the Seller shall be made within 12 months of the date of delivery of the Goods.  No claim made after the expiry of such period shall be valid.

8.13 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods and/or Services or their failure to correspond with specification shall be notified in writing to the Seller within 1 month of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure, but in any event within 3 months of delivery.  If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

8.14 Where any valid claim in respect of a breach of warranty given under clause 8.13 of any of the Goods and/or Services which is based on any defect in the quality or condition of the Goods and/or Services or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) (or re-supply the Services, as the case may be) free of charge or at the Seller’s sole discretion, refund to the Buyer the price of the Goods and/or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.

8.15 Notwithstanding anything to the contrary contained in the terms and conditions, the liability of the Seller under or in connection with the terms and conditions whether in contract or in tort, for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed the sum of £10 million

8.16 Without prejudice to any other exclusion or limitation of liability, damages, loss, expense or costs, the liability of the Seller for any claim or claims under the terms and conditions shall be limited to such a sum as it would be just and equitable for the Seller to pay having regard to the extent of their responsibility for the loss or damage giving rise to such claim or claims ("the loss and damage") and on the assumption that:

8.16.1 All other consultants, contractors, sub-contractors, suppliers, project managers or advisers engaged in connection with the Project shall have provided contractual undertakings on terms no less onerous than those set out in the terms and conditions in respect of the carrying out of their obligations; and

8.16.2 There are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Buyer and any other party referred to in this clause and any such other party who is responsible to any extent for the loss and damage is contractually liable to the Buyer for the loss and damage; and

8.16.3 All such other consultants, contractors, sub-contractors, suppliers,  project managers or advisers have paid to the Buyer such a sum as it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss and damage.

8.17 Further and notwithstanding anything to the contrary contained in the terms and conditions and without prejudice to any provision in the terms and conditions whereby liability is excluded or limited to a lesser amount, the liability of the Seller under or in connection with the terms and conditions whether in contract or in tort, in negligence, for breach of statutory duty or otherwise for any claim shall not exceed the amount, if any, recoverable by the Seller by way of indemnity against the claim in question under Product Liability Insurance taken out by the Seller.

8.18 The Seller shall be liable for the reasonable costs of repair, renewal and/or reinstatement of any part or parts of the Good supplied to the extent that:

8.18.1 The Buyer incurs such costs and/or

8.18.2 The Buyer is or becomes liable either directly or by way of financial contribution for such costs.

The Seller shall not be liable for other costs or losses incurred by the Buyer.

9. Copyright

9.1 All designs drawings specifications and information supplied to the Buyer whether directly or indirectly are confidential and copyright in such drawings designs specifications and information shall remain vested in the Seller.

10. Termination

10.1 The Seller may terminate the Contract without liability to the Buyer by giving notice to the Buyer at any time if: the Buyer breaches any material term of this Contract; the Buyer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or  becomes bankrupt or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or any similar or analogous event occurs in any jurisdiction; or the Seller reasonably apprehends that any of the foregoing events is about to occur in relation to the Buyer and notifies the Buyer in writing.

11. Governing Law

11.1 The validity construction and performance of this contract shall be governed by the laws of England.

11.2 The language of the contract is English.

12. Disputes

12.1 As a condition precedent to any dispute or difference being decided by the Courts, the Seller and Buyer agree to attempt amicable settlement by embarking upon an Alternative Dispute Resolution (ADR) procedure as recommended by the Centre for Dispute Resolution London.

12.2 It is mutually agreed ADR can take place before Court proceedings or concurrently with Court proceedings.