Terms and Conditions
These are the Terms and Conditions of Trading (Conditions) of (i) ASD Limited trading as Kloeckner Metals UK incorporated and registered in England and Wales with company number 01370600 and having its registered office at Valley Farm Road, Stourton, Leeds LS10 1SD and (ii) ASD Westok Limited trading as Kloeckner Metals UK incorporated and registered in England and Wales with company number 04486009 whose registered office is at Valley Farm Road, Stourton, Leeds, West Yorkshire LS10 1SD. [Your contract will be with either ASD Limited or ASD Westok Limited, as specifically identified in the relevant order.] [Both ASD Limited and ASD Westok Limited shall be referred to in these Conditions as Kloeckner Metals UK] OR [References in these terms to Kloeckner Metals UK shall be interpreted as references to either ASD Limited or ASD Westok Limited, as applicable.
VAT registration number 412183195.
You can contact us at enquiries@kloeckner.com
1. Interpretation
1.1 These Conditions apply to all contracts with customers of Kloeckner Metals UK for the supply of goods by Kloeckner Metals UK (Goods) and the provision of services by Kloeckner Metals UK (Services). Any goods, materials or products provided by you to Kloeckner Metals UK for the Services to be applied to or carried out on, shall be referred to as Customer Products. Customer Products shall constitute Goods when the Services have been carried out on them and they have been delivered to you.
1.2 In these Conditions the definitions detailed in clause 16 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 5 AND 14.
2. Basis of Contract
2.1 Orders for Goods and/or Services placed with Kloeckner Metals UK may be placed in writing, by telephone or by email, but in all cases will be subject to Kloeckner Metals UKs written acceptance. The contract between you and Kloeckner Metals UK will become legally binding only when Kloeckner Metals UK has notified you in writing [or by email] 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 Kloeckner Metals UK in relation to the subject matter of the Contract which are not set out in the Contract (including samples, drawings, descriptive matter, 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 Kloeckner Metals UK (whether written or oral) do not constitute offers and are not contractually binding on Kloeckner Metals UK. They are subject to withdrawal without notice and shall automatically lapse 30 days after the date of the quotation unless otherwise agreed by Kloeckner Metals UK in writing.
2.4 Kloeckner Metals UK 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 Kloeckner Metals UK, including any terms marked by Kloeckner Metals UK as Special Conditions, and these Conditions, the order in the form accepted by Kloeckner Metals UK, including any Special Conditions, shall prevail, to the extent of the conflict or inconsistency only.
3. E-commerce, marketplace
3.1 These Terms and Conditions apply accordingly to contracts entered into between Kloeckner Metals UK and customers via e-commerce website of Kloeckner Metals UK, which can be accessed at https://shop.kloeckner.co.uk/.
3.2 The e-commerce website of Kloeckner Metals UK can only be used by registered business customers in accordance with clause 1. Consumer orders are not accepted using the e-commerce website.
3.3 Orders by the customer of goods and/or services of Kloeckner Metals UK listed on the e-commerce website are deemed to be an offer of the customer to buy those goods and/or services specified in the order, subject to these Terms and Conditions. Kloeckner Metals UK’s order process allows the customer to check and amend any errors before submitting an order. It is the responsibility of the customer to ensure that the order is complete and accurate.Kloeckner Metals UK will send the customer electronic confirmation of receipt of the offer without undue delay after the offer has been received, which does not, however, constitute any acceptance of the offer. The offer is first deemed to have been accepted when Kloeckner Metals UK provides confirmation of acceptance [by email] to the customer or provide the goods and/or services that have been ordered, at which point and on which date a Contract between Kloeckner Metals UK and the customer will come into existence. Kloeckner Metals UK is not obliged to accept the order. When a contract is concluded, Kloeckner Metals UK stores the details of the contracts concluded with customers. Kloeckner Metals UK is not obliged to continue to make these details available to customers. The contract language is English.
3.4 On the e-commerce website Kloeckner Metals UK also provides partners with a marketplace via which they can sell goods and/or services to customers in their own name and for their own account (Partner Sales). Contracts are always concluded with the company indicated for the corresponding goods and/or services on the e-commerce website (i.e. Kloeckner Metals UK or a partner).
3.5 With respect to Partner Sales:
(a) with any exchange of communications between customers and partners, Kloeckner Metals UK always only acts as an intermediary;
(b) the customer acknowledges that Kloeckner Metals UK is neither responsible for the content and information provided by partners on the e-commerce site nor for the services offered by these partners or their actions and that Kloeckner Metals UK is not a party to the contract nor assumes any responsibility arising out of or in connection with it nor is it the partner’s agent;
(c) the partner is solely responsible for the performance of contracts concluded with customers, the provision of services, invoicing, collection of payments as well as warranty for defects, refunds and returns; and
(d) the general terms and conditions and privacy policies of the partner stated in the context of the conclusion of the contract apply exclusively.
3.6 The customer grants Kloeckner Metals UK and its subcontractors the non-exclusive, transferable, sub-licensable and royalty-free right to use the information and data provided or transmitted by the customer in connection with the e-commerce website (including data in connection with customer orders) as well as the information and data generated on this basis within the framework of the e-commerce website for the purpose of compliance with their contractual obligations, the operation of the e-commerce website, for data analyses, in particular for marketing and support purposes and for compliance with statutory obligations and official orders. This includes in particular the right to send the communications and data of the customer to a partner, as far as this is necessary for the conclusion and/or the performance of contracts of the customer with the partner. Further data protection requirements for the use of personal data remain unaffected by these provisions.
4. Price
4.1 Unless otherwise itemised on the order acceptance (in which case delivery shall be payable as itemised), the price set out in the Contract includes delivery [to locations within the UK only]. The price excludes VAT, which will be charged in addition at the rate applying at the time of delivery of the Goods and/or performance of the Services.
4.2 The price set out in the Contract excludes all other taxes and, customs duties which may be applicable and you shall pay any such tax or duty in addition to the price. If you are required under any applicable law to withhold or deduct any amounts from the payments due to Kloeckner Metals UK, you shall increase the sum you pay to Kloeckner Metals UK by the amount necessary to leave Kloeckner Metals UK with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
5. Specifications
5.1 Where Kloeckner Metals UK supplies Goods and/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 Kloeckner Metals UK to fulfil your order. Where applicable, you shall ensure that any Customer Products 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 Products.
5.2 Without prejudice to your obligations (and corresponding liability) under clause 5.1, where Kloeckner Metals UK provides any design services or gives you access to Software for the purpose of generating your own design outputs in relation to the Goods and/or Services you must check and confirm that your instructions have been interpreted correctly and, in such instances, Kloeckner Metals UK 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 the Contract until Kloeckner Metals UK has received the returned signed copy of the Specification. Kloeckner Metals UK shall have no liability for errors in any Specification or details supplied and/or approved by you.
5.3 Unless the Contract specifies otherwise, Kloeckner Metals UK shall be entitled to select the basis on which it charges you for Goods from the two options set out in sub-clauses 5.3(a) and 5.3(b) below. Goods are sold either by the number of items (quantity) or by a notional weight as follows:
(a) when sold by quantity, the price and Kloeckner Metals UKs charges shall reflect the actual quantity of each type of Good delivered with an additional charge based on Kloeckner Metals UKs standard rates from time to time for pallets and packaging. Unless otherwise agreed in writing, any length, depth or width specification of any type of Goods sold by quantity may vary by +/- 10% of any quoted dimension. Any variance within these industry standard tolerances shall not entitle you to reject the Goods being delivered (section 30 of the Sale of Goods Act 1979 is expressly agreed to not apply for the purpose of this clause 5.3(a)); or
(b) when sold by notional weight, unless otherwise agreed in writing, Kloeckner Metals UK shall have fulfilled its contractual obligation to you if; (i) the actual weight of Goods supplied excluding pallets and packaging is within +/- 10% of the notional weight of such Goods specified on Kloeckner Metals UKs advice note; and/or (ii) the actual quantities of each component element of the Goods used to calculate that notional weight is within the tolerances as to any of its dimensions outlined at clause 5.3(a). Any variance within these industry standard tolerances shall not entitle you to reject the goods being delivered (section 30 of the Sale of Goods Act 1979 is expressly agreed to not apply for the purpose of this clause 5.3(b)).
5.4 The quantity or notional weight of Goods printed on Kloeckner Metals UKs advice note shall be final unless you give Kloeckner Metals UK notice in writing of any disparity within 7 days after receiving the Goods and you provide Kloeckner Metals UK with a reasonable opportunity to verify the quantity or notional weight of the Goods before you use or sell the same.
5.5 If Kloeckner Metals UK agrees that you may inspect or test the Goods before delivery, Kloeckner Metals UK shall notify you when they are ready for inspection or testing. You shall inspect or test the Goods within 7 days of Kloeckner Metals UKs notification to you. Any disputes in respect of such inspection or testing shall be notified to Kloeckner Metals UK within 14 days of such inspection or testing taking place or the Goods shall be deemed to be in accordance with the Specification.
6. CE Markings
6.1 Subject to clauses 6.2 and 6.3, Kloeckner Metals UK will supply CE markings in accordance with the terms of a Contract and any such markings may be subject to an additional charge.
6.2 Upon placement of your order will be required to indicate if the Goods and/or Customer Products to which your order relates are intended for use and/or sale for use in a construction setting and therefore require the application of applicable CE markings and, if applicable, it shall be your responsibility to confirm the relevant execution class for which a CE mark is required. Kloeckner Metals UK shall only apply CE markings to any Goods and/or Customer Products if expressly stated in the Contract as being required by you and in the execution class you have confirmed as applicable and Kloeckner Metals UK shall have no responsibility for advising you or determining on your behalf whether a CE mark is required and, if so, which execution class is applicable. The application of a CE marking by Kloeckner Metals UK pursuant to the Contract and based on the information provided by you shall not indicate or imply any liability on the part of Kloeckner Metals UK for determining that such CE marking is accurately applied or correctly reflects the purpose for which you intend to use the supplied Goods and/or Customer Products.
6.3 If the Contract is silent on the issue of CE marking and if no relevant process is being applied to the Goods and/or Customer Products by Kloeckner Metals UK, Kloeckner Metals UK shall transfer to you the benefit of any certification given by the original producer or supplier of the Goods to the extent relevant.
7. Intellectual Property Rights
7.1 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.
7.2 The Intellectual Property Rights in any materials, Software and/or equipment, including drawings, designs, specifications or data, developed or produced by Kloeckner Metals UK in pursuance of a Contract shall be vested in Kloeckner Metals UK unless specifically agreed otherwise in writing at the time of entering into the Contract and you shall take all steps necessary to assign ownership in any such Intellectual Property Rights to Kloeckner Metals UK in accordance with Kloeckner Metals UKs directions, if so requested by Kloeckner UK.
8. Cancellation
8.1 Kloeckner Metals UK may suspend or cancel the Contract or any part of it, by written notice if:
(a) you fail to pay Kloeckner Metals UK any money when due (under the Contract or otherwise); or
(b) you suffer an Insolvency Event.
8.2 Subject to clause 10.2, you may only cancel the Contract or any part thereof if Kloeckner Metals UK agrees in writing (at its sole discretion) and, in such circumstances, you shall pay to Kloeckner Metals UK the sums due for costs incurred up to cancellation, including:
(a) any material, processing and manufacturing costs;
(b) the price of specialist/customer specific goods and/or Services;
(c) costs of failed delivery attempts; and
(d) any other costs related to the Contract which Kloeckner Metals UK has incurred which are notified by Kloeckner Metals UK to you.
9.Return of Goods
9.1 Kloeckner Metals UK may, at its sole discretion, accept the return of Goods from you:
(a) if Kloeckner Metals UK has expressly agreed to do so in writing
(b) if the Goods are a standard stock item when you request the return;
(c) on payment of an agreed handling charge; and
(d) in all cases, where the Goods are as fit for sale on their return as they were on delivery.
10. Delivery
10.1 Kloeckner Metals UK shall use its reasonable endeavours to meet any performance dates and times specified in the Contract but any such dates and times, including all delivery times, shall be estimates only and time shall not be of the essence for the delivery of Goods and/or performance of the Services.
10.2 Subject to clause 10.12, if Kloeckner Metals UK fails to deliver the Goods and/or Services within a reasonable timeframe of the specified or agreed delivery date, you may (by giving Kloeckner Metals UK written notice in accordance with clause 15.10) cancel the Contract, however:
(a) you may not cancel the Contract if Kloeckner Metals UK receives your notice after the Goods have been di spatched or the Services scheduled for performance; and
(b) if you do cancel the Contract, your exclusive remedy shall be to claim back any sums already paid to Kloeckner Metals UK for the Goods and/or Services.
10.3 If you accept delivery of the Goods or performance of the Services after any estimated delivery or performance time given by Kloeckner Metals UK, delivery or performance will be deemed to have been in accordance with the Contract.
10.4 Kloeckner Metals UK may, with your prior agreement or as specified in the Contract, deliver the Goods in instalments. Each instalment is treated as a separate Contract.
10.5 If delivery does not take place because you are at fault or for reasons beyond Kloeckner Metals UKs control, Kloeckner Metals UK may store and insure the Goods at your expense. In such circumstances, Kloeckner Metals UK shall use reasonable endeavours to attempt to deliver the Goods, but Kloeckner Metals UK has the right to sell them after a period of 14 days has passed since the original delivery attempt. Kloeckner Metals UK may recover from the proceeds of such sale, such costs of storage and insurance together with Kloeckner Metals UKs costs of attempting to deliver the Goods together with any unpaid balance of the sale price of those Goods still owed by you as at the day of failed delivery. In the event that such sale proceeds are insufficient to cover such costs and sale price, Kloeckner Metals UK may invoice you for the shortfall, and you shall pay to Kloeckner Metals UK such sums in accordance with clause 11.
10.6 If you order Goods and/or Services with a single delivery date that has been agreed in writing by Kloeckner Metals UK (in the Contract or otherwise) 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 Kloeckner Metals UK to the change, including an adjustment to the price to reflect the change in delivery.
10.7 Neither Kloeckner Metals UK 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.
10.8 If the driver of the delivery vehicle leaves the vehicle at your request while the Goods are being unloaded, Kloeckner Metals UK shall not be liable whether in contract (including fundamental breach), tort (including negligence), breach of statutory duty or otherwise for any non-delivery of Goods, for example (but without limitation) resulting from theft or loss of the Goods while the vehicle is unattended.
10.9 Kloeckner Metals UK may decline to deliver the Goods if:
(a) Kloeckner Metals UK 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 Kloeckner Metals UKs or the carriers delivery vehicle. Any unforeseen additional costs resulting from any requirement of Kloeckner Metals UK 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 11.
10.10 Unless otherwise agreed in the Contract all risk of loss or damage to the Good shall pass to you on Delivery. Delivery will be deemed to have taken place:
(a) at Kloeckner Metals UKs premises when you collect the Goods; or
(b) at the agreed delivery address, when you have unloaded the Goods (if Kloeckner Metals UK is arranging carriage).
10.11 Any reference to Incoterms in an order (subject always to Kloeckner Metals UKs written acceptance of the same) or the Contract shall be a reference to that term as defined in the Incoterms 2010 rules. In the event of any conflict between these Conditions and any specified Incoterm, the Incoterm shall prevail.
10.12 If there is a failure of delivery, you shall notify Kloeckner Metals UK in writing within 7 days of receipt of Kloeckner Metals UKs despatch documents or Kloeckner Metals UKs invoice, whichever is earlier. You shall be deemed to have taken delivery of the Goods if you do not do so.
11. Payment Terms and Application for Credit
11.1 Subject to clause 11.2, you shall pay to Kloeckner Metals UK the price quoted for the Goods and/or Services (as applicable) i n accordance with the relevant invoice issued by Kloeckner Metals UK, in cleared funds in GBP Sterling by the method agreed by the parties, on or before delivery of the Goods and/or performance of the Services (as applicable). If you fail to do so, Kloeckner Metals UK may decline to deliver the Goods and/or perform the Services.
11.2 If you have an approved Kloeckner Metals UK credit account, you shall pay to Kloeckner Metals UK the price quoted in GBP Sterling by the method agreed by the parties no later than the end of the month following the month of delivery of Goods/performance of Services (as applicable) unless otherwise agreed in writing by Kloeckner Metals UK.
11.3 Kloeckner Metals UK shall use reasonable endeavours to consider an application for a credit account on satisfactory completion and submission to Kloeckner Metals UK by you of its Application to Open a Credit Account. Kloeckner Metals UK may, in its absolute discretion, decline any application for a credit account and is not obliged to give any reason for such decision.
11.4 Kloeckner Metals UK 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 Kloeckner Metals UK may withdraw from a Contract (even after acceptance by Kloeckner Metals UK), or delay delivery under it, consistent with any change in your credit position.
11.5 By placing an order with Kloeckner Metals UK or applying for an Kloeckner Metals UK credit account, you:
(a) consent to Kloeckner Metals UK 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 Kloeckner Metals UK with any and all information reasonably requested by Kloeckner Metals UK in relation to your business operations and/or finances in order to ascertain your creditworthiness.
11.6 If you fail to pay Kloeckner Metals UK in full in accordance with clause 11.1 or 11.2 (as applicable):
(a) Kloeckner Metals UK may suspend or cancel future deliveries of Goods and/or provision of Services under any Contract;
(b) Kloeckner Metals UK may cancel any discount offered to you; and
(c) you shall pay Kloeckner Metals UK interest and compensation calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
11.7 You do not have the right to set off any money you may claim from Kloeckner Metals UK against anything you may owe Kloeckner Metals UK. While you owe money to Kloeckner Metals UK, Kloeckner Metals UK shall have a lien on your property in its possession.
11.8 When exporting Goods outside the United Kingdom, Kloeckner Metals UK may, at its discretion, require you to provide an export guarantee in a form satisfactory to Kloeckner Metals UK and if you fail to provide the required export guarantee Kloeckner Metals UK may decline to deliver the Goods and/or perform the Services as applicable.
12. Title and Risk Where you provide Customer Products on which Kloeckner Metals UK performs Services under a Contract:
12.1 The Customer Products will be at Kloeckner Metals UKs risk only whilst they are in Kloeckner Metals UKs possession and Kloeckner Metals UK shall insure the Customer Products to their full replacement value while in Kloeckner Metals UKs possession.
12.2 Title to the Customer Products shall remain with you at all times during the Contract (subject to any lien over such Customer Products).
12.3 Kloeckner Metals UK may exercise a lien over the Customer Products in its possession until such time as Kloeckner Metals UK has received in full:
(a) all amounts due to Kloeckner Metals UK under the Contract in respect of the Services; and
(b) all other sums due to Kloeckner Metals UK from you which are outstanding.
12. Where Kloeckner Metals UK provides Goods under a Contract:
12.4 Title to the Goods shall pass to you when Kloeckner Metals UK has received:
(a) all amounts due to Kloeckner Metals UK under the Contract in respect of the Goods and Services; and
(b) all other sums due to Kloeckner Metals UK from you which are outstanding.
12.5 The Goods are at your risk from the time of delivery in accordance with clause 10.10.
12.6 Until the date on which title to the Goods passes to you in accordance with clause 12.4, all Goods shall remain the property of Kloeckner Metals UK and you shall:
(a) store them at your own cost separately from all other goods so that they are clearly identifiable as Kloeckner Metals UKs property and in or on premises to which you are able to grant Kloeckner Metals UK access in accordance with clause 12.7;
(b) insure them and keep them insured for the full amount due to Kloeckner Metals UK (against the risks for which a prudent owner would insure them) with a reputable insurance company and ensure Kloeckner Metals UKs interest is noted on the policy;
(c) if the Goods are destroyed by an insured risk, hold the insurance proceeds, separately from all other monies, on trust for Kloeckner Metals UK;
(d) hold the Goods on a fiduciary basis as Kloeckner Metals UKs bailee;
(e) save as permitted by clause 12.6(m), not incorporate the Goods into any other items;
(f) not remove, destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(g) ensure that the Goods remain in satisfactory condition;
(h) save as permitted by clause 12.6(m), not sell or purport to sell to Goods to a third party;
(i) not create or purport to create any lien, charge or other encumbrance over or otherwise affecting the Goods;
(j) notify Kloeckner Metals UK immediately if you become subject to an Insolvency Event;
(k) immediately provide Kloeckner Metals UK with such information relating to the Goods as Kloeckner Metals UK may require from time to time;
(l) notwithstanding clauses 12.6(e) and 12.6(h) hold on trust for Kloeckner Metals UK any proceeds of sale of the Goods on trust in a trust account separate from other monies; and
(m) subject to clause 12.6(l), you may use the Goods and sell them in the ordinary course of your business, but you may not use or sell the Goods if: (i) Kloeckner Metals UK revokes that right (by informing you in writing); or (ii) you become subject to an Insolvency Event.
12.7 Kloeckner Metals UK may, where title to the Goods remains with Kloeckner Metals UK, recover and resell the Goods and you grant to Kloeckner Metals UK an irrevocable licence to enter any premises owned and/or controlled by you in order for Kloeckner Metals UK to:
(a) at any time, inspect the Goods; and/or
(b) after your right to use and sell the Goods has ended in accordance with clause 12.6(m), remove them.
12.8 If you fail to pay any sums owed to Kloeckner Metals UK for Goods or Services provided by the due date for payment in accordance with a relevant invoice, notwithstanding Kloeckner Metals UKs retention of title to the Goods pursuant to this clause 12, Kloeckner Metals UK has the right to take legal proceedings to recover the price of Goods and/or Services supplied together with interest and compensation pursuant to clause 11.6(c).
13. Third Party Contractors
13.1 By entering into a Contract you agree that Kloeckner Metals UK may utilise third party suppliers and contractors in carrying out Services under that Contract, including passing possession of Customer Products to such third parties for the purposes of receiving such Services.
13.2 Despite any confidentiality or non-disclosure agreement which may be in place between you and Kloeckner Metals UK at the time of this Contract, you agree that Kloeckner Metals UK may share information, including the Specification, with third party suppliers and subcontractors as required to receive and perform Services.
13.3 In the event that Kloeckner Metals UK utilises a third party supplier Kloeckner Metals UK shall, to the extent it would have been should Kloeckner Metals UK have carried out any Services itself:
(a) remain liable and provide such warranties for the Goods and/or Services supplied; and
(b) retain the risk and title to the Goods.
14. Warranties, Indemnity and Liability
14.1 Subject to clauses 5.2 and 5.5, clauses 14.2 to 14.6 and clauses 14.8 to 14.10, Kloeckner Metals UK warrants that:
(a) the Goods and Services will conform to the Specification; and
(b) Services will be provided with reasonable care and skill.
14.2 Save as set out in clause 14.1, Kloeckner Metals UK 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 Kloeckner Metals UK has prepared.
14.3 You are responsible for ensuring, and warrant to Kloeckner Metals UK 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 Kloeckner Metals UK;
(b) you have provided Kloeckner Metals UK with complete and accurate information in relation to any requirement for, and applicable execution classes in relation to, CE markings which may be applicable to the Goods and/or Customer Products pursuant to clause 6;
(c) you are the owner of, or have the right to have the Services carried out on, any Customer Products;
(d) the Services provided are suitable for your purposes;
(e) the Customer Products are suitable to have the Services performed on them; and
(f) the Customer Products conform to any requirement specified in the Specification or any instruction from Kloeckner Metals UK.
14.4 Subject to clause 14.10, Kloeckner Metals UK shall not be liable, whether in contract (including fundamental breach), tort (in cluding 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 14.3;
(b) are produced to the Specification; or
(c) is caused by a defect in the Customer Products which existed prior to the performance of the Services.
14.5 You shall inspect the Goods on delivery. If any Goods are defective on delivery (or only partially delivered) you must mark the advice note accordingly and you:
(a) shall inform Kloeckner Metals UK (in writing), with full details, before their use or resale and in any event within 7 days of delivery;
(b) shall allow Kloeckner Metals UK and any carrier to investigate the alleged defect or non-delivery; and
(c) hereby grant Kloeckner Metals UK access to your premises and any premises you control and the Goods for the purpose of investigating the alleged defect.
14.6 Kloeckner Metals UK 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. .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 Kloeckner Metals UK (in writing), with full details, within 7 days of discovering the alleged defect and in any event within 1 month of delivery;
(b) shall allow Kloeckner Metals UK to investigate the alleged defect; and
(c) hereby grant Kloeckner Metals UK access to your premises and the Goods for the purpose of investigating the alleged defect.
14.7 If, following Kloeckner Metals UKs investigations, the Goods have not been delivered or any Goods and/or Services delivered are found not to be in accordance with clause 14.1, and you have complied in full with clauses 10.12, 14.5 and/or 14.6 (as applicable), Kloeckner Metals UK shall, at its sole option, replace or repair the Goods, re-perform the Services or refund the price of the finished Goods.
14.8 Subject to clause 14.10, Kloeckner Metals UK 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 (i) any indirect or consequential loss, financial loss, or (ii) for any direct or indirect 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.
14.9 Subject to clauses 14.8 and 14.10, Kloeckner Metals UKs 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 and/or Services (as applicable) under such Contract.
14.10 Nothing in the Contract restricts or limits Kloeckner Metals UKs 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.
14.11 You shall indemnify and keep indemnified Kloeckner Metals UK in full and on demand from all costs, proceedings, actions, claims or demands, liabilities, losses, damages and obligations which Kloeckner Metals UK may incur or for which Kloeckner Metals UK 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.
15. General
15.1 Any waiver of a part of the Contract is binding only if it is made (or recorded by Kloeckner Metals UK) 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.
15.2 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.
15.3 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 Kloeckner Metals UK and you.
15.4 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.5 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.
15.6 If Kloeckner Metals UK is unable to perform its obligations to you under the Contract or any other contract between Kloeckner Metals UK and you (or is only able to perform them at unreasonable cost) because of a Force Majeure Event Kloeckner Metals UK 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.
15.7 Kloeckner Metals UK may use and disclose personal information about you to third parties for the purpose of supplying Goods and/Services to you and processing invoices and statements. In respect of any of your personal data held by Kloeckner Metals UK, Kloeckner Metals UK shall comply with our Data Protection Notice and the provisions of the Data Protection Act 2018 insofar as it applies to Kloeckner Metals UK.
15.8 If you are more than one person, each of you has joint and several obligations under the Contract.
15.9 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.
15.10 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.
15.11 No contract between you and Kloeckner Metals UK will create any right enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, or otherwise, by any person other than Kloeckner Metals UK and you.
15.12 Kloeckner Metals UK may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract.
15.13 You shall not, without the prior written consent of Kloeckner Metals UK, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract.
15.14 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.
16. Definitions
Force Majeure Event an event beyond the reasonable control of Kloeckner Metals UK including strikes, lock-outs, other industrial disputes (whether involving the workforce of Kloeckner Metals UK 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 (a) you go into liquidation; (b) 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; (c) 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; (d) 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; (e) you are otherwise unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986); or (f) you are 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 Kloeckner Metals UK, or provided or made available by or on behalf of Kloeckner Metals UK 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 Kloeckner Metals UK as set out in the order confirmation.
(a) consent to Kloeckner Metals UK 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 Kloeckner Metals UK with any and all information reasonably requested by Kloeckner Metals UK in relation to your business operations and/or finances in order to ascertain your creditworthiness.