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WHT Holdings Ltd. Conditions of Sale for Services

WHT Holdings Ltd Conditions of Sale for Services

1.0     Interpretation

In these Conditions:

  (a) "Company" means WHT Holdings Ltd or any subsidiary company of WHT Holdings Ltd;

"Customer" means the person, firm, company or legal entity with whom the Contract is made;

"Contract" means the contract between the Company and the Customer for the Treatment of the Goods into which these Conditions are incorporated;

"Estimate" means the oral or written estimate given by the Company to the Customer;

"Quotation" means the written quotation given by the Company to the Customer;

"Acknowledgement" means the written acknowledgement of an order given by the Company to the Customer;

"Goods" means the Customer's goods described in the Quotation, Acknowledgement or subsequently supplied by the Customer to the company for Treatment;

"Premises" means the Company’s premises or place of business as shall be specified on the Quotation or Acknowledgment;

"Treatment" means the heat treatment (or other treatment) described in the Quotation or subsequently provided by the Company to the Customer;

"Treated Goods" means Goods after Treatment;

"Writing" and "Written" shall include e-mail, telex and facsimile transmission.

  (b) Words and phrases defined for the purposes of or in connection with any statutory provision shall where the context so requires be construed as having the same meaning in these Conditions and 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.

  (c) Unless the context otherwise requires reference to a Condition shall be construed as a reference to a Condition of these Conditions and reference to clause or sub-clause shall be construed as reference to a clause or sub-clause of a Condition.

  (d) The headings and numbers in these Conditions are for ease of reference only and do not form part of the Conditions for the purposes of construction.

  (e) These Conditions shall supersede all previous terms and conditions existing between the Company and the Customer.

2.0     Formation of Contract

2.1    The Contract is between the Company and Customer as principals and shall not be assignable by the Customer without the written consent of the Company.

2.2     The Contract and its subject matter are confidential and shall not be used for any unauthorised purposes.

2.3     Specifications, descriptions and illustrations contained in the Company’s catalogues, brochures or other advertising materials (in whatever form including documents on any website) are intended to give only a general indication of the services concerned and the possible result of any treatment and no such specifications, descriptions or illustrations shall form any part of the Contract or form any warranty or representation by the Company;

2.4     The Quotations and its Acknowledgements shall only be in writing given by the Company and shall be deemed to include these Conditions (subject to the provisions of clause 2.14);

2.5     The Quotation forms an offer capable of acceptance by the Customer within 30 days from the date thereof, but the Contract shall not come into effect until the Customer has accepted the Quotation and until such time the Company shall be free to withdraw the offer. Where an order is placed by the Customer for Treatment, it shall be deemed to be an offer to purchase treatment services subject to these Conditions;

2.6     The Customer warrants that the Goods are the absolute property of the Customer and are not subject to any option, right to acquire, assignment, mortgage, charge, lien or otherwise or the subject of any factoring arrangement, hire purchase, conditional sale or credit sale agreement;

2.7     After examination of samples of the Goods or upon receipt of the Goods, the Company has the right to amend any Quotation or Estimate or decline to accept Goods for Treatment or to cancel any contract without liability to the Customer;

2.8     Where a quotation is not requested or supplied, the price charged for the treatment shall be the price ruling at the date of completion of the treatment. The Company’s ruling prices may be inspected at the premises of the Company. For the avoidance of doubt, the Company’s ruling prices shall include a minimum price chargeable in any circumstance;

2.9     The Company where possible may notify the Customer of any necessary changes to the specification, materials or finishes used in the Treatment to conform to any applicable safety or statutory requirements but is not bound to do so;

2.10     Where the Quotation Estimate or Acknowledgement contains documents and particulars in whatever form (including electronic) produced by the Company including (without prejudice to the generality of the foregoing) illustrations, designs, drawings, weight and technical specifications and ratings such documents and particulars shall be deemed to be approximate only. The Customer undertakes to observe strict secrecy with such documents and particulars and not to disclose them to others and the Company reserves all rights to copyright, design rights and all other intellectual or industrial property rights therein including the ownership of the actual documents submitted.

2.11     The Company may by giving notice to the Customer at any time up to receipt of the Goods by the Company for Treatment increase any price quoted to reflect any increase in the costs of treatment which are due to an increase in the cost of labour, materials, manufacturing and transport costs or the imposition, introduction or increase of levies or taxes to which the Company is subject.

2.12     Cancellation of the Contract by the Customer will be a breach of contract entitling the Company to compensation and the Customer shall indemnify the Company in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses paid incurred or sustained by the Company as a result of the cancellation.

2.13     Insofar as an order by the Customer is in any circumstances regarded or held to constitute the terms of a counter-offer the Customer shall be taken to have withdrawn such counter-offer by delivering any Goods to the Company for Treatment or by accepting physical delivery of any of the Treated Goods from the Company.

2.14     These Conditions constitute the entire agreement between the Company and the Customer and no variation to these Conditions shall be effective unless made in writing and signed by a director (or an authorised officer or employee) of the Company. (At the request of the Customer the Company will verify in writing whether any named individual has the requisite authority)

2.15     The Company and the Customer acknowledge that these Conditions have been given due consideration and that they are considered fair and reasonable by the Company and the Customer.

3.0     Prices and Payment

3.1     Unless otherwise stated, all prices quoted are the price of the Treatment in pounds sterling exclusive of VAT and do not include collection delivery packaging or insurance of the goods. The Customer shall be responsible for any additional costs arising from variation of quantity part deliveries or express despatch.

3.2     The price for each delivery (“the Price”) shall be paid without any deduction by way of set- off, counterclaim or otherwise and received by the Company:

(i) in full in cash before receipt of the Completed Goods unless a credit account has been set up by the Company for the Customer

(ii) within thirty days of the end of the calendar month in which the Company’s invoice is issued; or

(iii) if a date or dates for payment are specified on the Quotation or Acknowledgement on the dates specified (“the Due Date”). The time of payment of the Price shall be of the essence of the Contract.

3.3     The Company shall invoice the Customer after completion of the Treatment of part of the Goods payment of such part of the price as relates to the completed part of the Treatment shall become due and payable notwithstanding that the remainder of the Treatment shall not have been completed.

3.4     The Customer will pay to the Company all additional costs charges and expenses which the Company incurs or sustains in respect of or otherwise connected with the variation delay or suspension of the Contract arising from an act or omission of the Customer or any employee agent or contractor of the Customer or by reason of any other circumstances for which the Company is not wholly responsible.

3.5     The Company shall be entitled to apply as it thinks fit any payment received from the Customer to any debt outstanding in respect of any contract between the Company and the Customer notwithstanding any purported appropriation by the Customer to the contrary.

4.0     Interest

4.1     In default of payment being made by the due date, the Company may charge interest at the rate of 8% per annum above the base rate from time to time of Barclays Bank plc on any overdue amount from the day following the due date until the date of receipt of cleared funds.

5.0     Transportation

5.1     When accepting the Quotation or Acknowledgement the Customer shall submit to the Company all information specifications drawings and technical descriptions (“the Information”) necessary to enable the Company to provide the Treatment and the Customer alone shall be responsible for the accuracy and completeness of such Information and their suitability to the Goods. The Company reserves the right not to commence Treatment until it shall be in receipt of such Information which it shall deem necessary for such purpose.

5.2     Unless otherwise stated in the Quotation or Acknowledgement the Customer shall deliver the Goods to the Premises at which the Treatment is to take place on the date and time notified by the Company to the Customer for such purpose and shall be solely responsible for the costs and risks thereof.

5.3     If the Quotation or Acknowledgment includes transportation of the Goods to and from the Premises, then the Company will arrange transport by whatever method it considers appropriate (including the use of a third party carrier if it so wishes).

5.4     The Customer shall be responsible for the suitable packing of the Goods having regard to their manufacturing tolerances, quality and value to the Customer in materials which can be reused where appropriate by the Company for delivery of Treated Goods. Where such materials are not reusable or in the opinion of the Company deemed inadequate for packing Treated Goods the Company will pack Treated Goods as it deems appropriate and any additional costs so incurred shall be charged to the Customer. The Company does not accept responsibility for the return of packing materials after the Treatment nor the suitability of any packing for the protection of the goods.

6.0     Risk

6.1     Unless the Contract expressly states the contrary, risk of damage or loss to Goods and the Treated Goods shall at all times (including whilst they are at the Premises and during transportation to and from the Premises) remain at the Customer’s entire risk who shall be responsible for affecting and maintaining its own insurance cover in respect thereto. Without prejudice to the generality of the foregoing, the Customer shall insure the Goods and Treated Goods in transit irrespective of the means of transportation used.

6.2     It is the Customer’s responsibility to decide whether or not the Company’s limits of liability are acceptable and to inform the Company in writing if they are not before submitting the goods for treatment. On written request by the Customer to the Company the Company will seek to obtain a quotation for insurance cover for increased liability. The Customer will be responsible for the payment of all premiums and costs involved in effecting such insurance and the Company will not proceed with any treatment until the insurance policy is in place and all premiums are paid.

6.3     The Customer is responsible in all cases for loading and unloading the delivery vehicle when not at the Company’s premises and shall be responsible for all loss of or damage to the Treated and Untreated Goods during the course of loading and unloading.

7.0     Delivery

7.1     Any dates given in the Quotation, Acknowledgment or otherwise by the Company for when the Treated Goods will be available for collection shall be estimates only and shall not constitute essential terms of the Contract. Any delay in completing the Treatment shall not constitute a breach of contract entitling the Customer to terminate.

7.2     Delivery of the Treated Goods shall be made by the Customer collecting the Treated Goods at the Premises or, if some other place for delivery is agreed by the Company, by the Company dispatching the Treated Goods to that place.

7.3     The Customer shall, unless the Company is to arrange delivery of the Goods to the Customer’s premises, collect the Goods from the Premises within 30 working days of the Company notifying the Customer that the Goods are available for collection.

7.4     In any case where the Company has agreed in writing to both a guaranteed delivery date and an agreed daily sum by way of pre-estimated damages for failure to deliver in accordance with the Contract the Company's liability shall be limited to the agreed daily sum. In any other case the extent of the Company's liability shall be as stated in Condition 11.

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

7.6     If the Customer fails to take delivery of the Treated Goods or fails to give the Company adequate delivery instructions at the time stated for delivery then without prejudice to any other right or remedy available to the Company, the Company may:

(i) store the Treated Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or

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

7.7     Where the Contract expressly states that the Company bears the risk of damage or loss to the Treated Goods and provides for delivery of the Treated Goods elsewhere than at the Premises the Company will consider a claim by the Customer in respect of loss or damage in transit only if the Customer:

(i) gives written notice to the Company within twenty one days after the date of the Company's advice note or other notification of the despatch of the Treated Goods in the case of non-delivery, or within seven working days of the delivery of the Treated Goods in any other case; and

(ii) where the Treated Goods are transported by an independent freight carrier complies in all respects with the freight carrier's conditions of carriage for notifying claims for loss or damage in transit; and

(iii) is unable to make a claim for the loss or damage to its insurance company and all requirements of the insurance of the Goods whilst in transit have been fully complied with.

7.8     Subject to the provisions of paragraph 7.6 the Company shall have a general lien on all goods and property belonging to the Customer and such lien shall be exercisable in respect of all sums lawfully due from the Customer to the Company. The Company shall be entitled on the expiration of fourteen days' notice to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards such debt.

7.9     The Company may store all or any part of the Treated Goods at locations other than the Premises.

8.0     Cancellation and Suspension of the Contract

8.1     This Condition applies if:

(i) any sum which is due and payable by the Customer to the Company whether under the Contract or otherwise remains unpaid for a period of seven days; or

(ii) the Customer fails to take delivery of any goods under any contract between the Customer and the Company otherwise than in accordance with the Customer's contractual rights; or

(iii) the Customer fails to supply the Company with instructions for despatch of the Treated Goods within seven days of notice being given to the Customer that the same are ready for despatch; or

(iv) unforeseen events including (without prejudice to the generality thereof) those referred to in Clause 14 materially affect the commercial effect of the Contract; or

(v) the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or

(vi) an encumbrancer takes possession or a receiver administrative receiver or administrator is appointed over any of the property or assets of the Customer; or

(vii) the Customer ceases or threatens to cease to carry on business; or

(viii) the Company reasonably apprehends that any of the events mentioned in paragraphs (v) to (vii) is about to occur in relation to the Customer and notifies the Customer accordingly; or (ix) in the reasonable opinion of the Company the credit rating of the Customer is reduced; or

(ix) if the Company receives notice of any claim alleging that the Goods or any part thereof or any Treatment applied to the Goods infringe any patent copyright design right trade mark or other industrial or intellectual property rights of any other person; or

(x) the Customer fails to provide any letter of credit, bill of exchange or other security required by the Contract.

8.2     If this Condition applies then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Company and, if the Treated Goods have been delivered but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

9.0     Sub-Contracting

9.1    The Company reserves the right to sub-contract the fulfilment of the Contract or any part thereof in which event the Company contracts on behalf of itself and its sub-contractors.

10.0     Duties and Responsibility

10.1     The Company will carry out the Treatment with reasonable skill and care. The employees of the Company are not authorised to make representations as to the quality or fitness for Treatment of any Goods. If a representation is made or an opinion expressed orally which materially affects the Customer's decision to place an order for Treatment the Customer must ensure that such details are confirmed in writing by a director (or a duly authorised officer or employee) of the Company so as to form part of the Contract otherwise no liability can be accepted.

10.2     The Company shall (subject to the provisions of Clause 11.3) be under no liability;

(i) in respect of any defect in the Goods;

(ii) in respect of any defect in the Goods or the Treated Goods arising from any information drawing design or specification supplied by or on behalf of the Customer;

(iii) in respect of any defect in the Treated Goods arising from fair wear and tear wilful damage negligence abnormal working conditions failure to follow the Company's instructions (whether oral or in writing) or misuse of the Treated Goods without the Company's approval;

(iv) if the total price for the Treated Goods has not been paid by the Due Date;

(v) and the Customer shall be deemed to have accepted the Treated Goods and it shall be conclusively agreed that the Goods are in accordance with the Contract unless;

(aa) the Customer gives notice in accordance with clause 10.4; or

(bb) within seven days after receipt of the Treated Goods and prior to their use or resale the Customer serves upon the Company a written notice specifying any defect in the quality or state of the Treated Goods or other respect in which the Treated Goods are not in accordance with the Contract which would be apparent upon careful inspection or by such testing as it is reasonable in all the circumstances for the Customer to undertake or stating why the Treated Goods are not otherwise in accordance with the Contract and thereafter provides to the Company a reasonable opportunity of inspecting and testing the Treated Goods before they have been used or resold; or

(cc) if a defect in the quality or state of the Treated Goods or other respect in which the Treated Goods are not in accordance with the Contract would not be apparent upon careful inspection or reasonable testing the Customer serves upon the Company written notice of such defect or respect forthwith upon its discovery specifying the matters complained of and affording to the Company a reasonable opportunity of inspecting the Treated Goods before any making good or replacement is undertaken. The Customer shall not be excused from providing such opportunity by reason of the incorporation of the Treated Goods in the property of a third party or the location of the Treated Goods in upon or under the premises or land of a third party;

10.3     After the Treatment the Company will normally test a small percentage of Treated Goods for conformity with the Customer's specification. Where the Contract provides for testing or inspection of the Treated Goods by or on behalf of the Customer before delivery whether at the Premises or elsewhere then upon the Company giving notice of the availability of the Treated Goods for inspection/testing the Customer shall inspect and/ or test the Treated Goods within seven days of such notice. If the Customer does not inspect or test the Treated Goods within the time specified or if within seven days of such testing or inspection the Customer does not notify the Company in writing that the Treated Goods are not in accordance with the Contract specifying the matters complained of then the Customer shall conclusively be deemed to have accepted the Treated Goods as being in accordance with the Contract and shall not thereafter be entitled to reject the Treated Goods on the grounds of anything which such testing or inspection has or would have revealed.

10.4     In the event that the Customer serves written notice on the Company pursuant to clause

10.2     above the Customer shall afford to the Company reasonable opportunity to inspect the Treated Goods which are the subject of the written notice and, if so requested, by the Company, the Customer will return such Treated Goods to the Premises at the Customer's expense to enable the Company to carry out such inspection.

10.5     If the Treated Goods referred to in any written notice served by the Customer pursuant to clause 10.2 are found by the Company to be faulty as a result of Treatment or damaged as a result of the acts of omissions of the Company or its employees or agents (the “defective Treated Goods”) the Company will at its option and subject always to the provisions of clause 11.3

(i) repeat the Treatment or any part of it; or

(ii) credit the Customer with the appropriate part of the cost of faulty Treatment or damage to the defective Treated Goods and the reasonable cost of returning the defective Treated Goods to the Premises.

11.0      Liability

11.1     The Customer expressly holds itself out as making the Contract in the course of a business.

11.2     Except as expressly provided in these Conditions all warranties statements terms and conditions or undertakings which may be implied by statute common law custom of the trade or otherwise are hereby excluded to the extent permitted by law.

11.3     The Company does not exclude liability for:

(i) death or personal injury resulting from its negligence or that of its employees;

(ii) direct physical damage to or physical loss of the property of the Customer resulting from the Company's its employees' or agents’ negligent acts or omissions and which arise out of the performance of its obligations under the Contract provided that the Company's liability under this sub-paragraph 11.3 (ii) shall not exceed the lesser of £3000 or three times the Contract price in aggregate in respect of any one event or series of events.

11.4     Subject to paragraph 11.3 the Company will not be liable to the Customer for any:

(i) direct loss damage or injury; and/or

(ii) indirect consequential or special loss, damage or injury or economic loss (including but without limitation financial loss of profits, loss of business or business revenue or contracts loss of operating time or loss of use) whether foreseeable or not to the Customer or to the Customer's property howsoever whensoever or wheresoever arising whether by reason of any representation or misrepresentation or any implied warranty condition or other term or duty at common law or under statute or under the express terms of the Contract (and whether caused by the negligence of the Company or otherwise) or otherwise in respect of or in connection with the Treatment of the Goods or their use or resale by the Customer except as expressly provided in these Conditions;

11.5     The weight or quantity of the Treated Goods printed upon the Company's advice/despatch note shall be final unless the Customer shall have given written notice of any discrepancy in weight or quantity within seven days after receipt of the Treated Goods and has thereafter given the Company a reasonable opportunity of witnessing a verification of the Treated Goods before they have been used processed or sold provided always that the Customer acknowledges and accepts there shall be excluded losses of 3% of the Goods from the weight or quantity of Treated Goods (being the norm in the industry for losses during Treatment of Goods)

11.6     The Company is concerned to ensure that the price of Treatment remains competitive and taking into account

(i) the fact that the Customer is in a better position than the Company to know or ascertain the amount of any loss which will arise out of any defect in the Treated Goods;

(ii) the fact that the extent of the damage that might be caused or alleged to be caused to the Customer or to the Goods is disproportionate to the amount that can reasonably be charged (and is charged) by the Company to the Customer for the Treatment;

(iii) the natural hazards of treatment, the fact that the company only carries out one part of the whole manufacturing process and the Company’s lack of control over the type or quality of material used, the manufacturing process used and the final use of the goods

(iv) the terms and conditions upon which the Company's own suppliers are prepared to supply goods and services to the Company this must necessarily involve the incorporation of the terms and conditions set out in this Clause 11.

12.0     Acknowledgement

12.1     The Customer acknowledges and accepts that Treatment carries risks to the Goods including, but not limited to, cracking, distortion, failure to respond and segregation, dependent upon such factors as manufacturing history, size and sections for which the Company has no control, the Customer accepts full responsibility and the Customer enters into the Contract on such basis.

12.2     Accordingly the Customer shall be responsible for ensuring that the Goods are suitable for Treatment. If prior to or at any time during Treatment the Company forms the opinion in its absolute discretion that the Goods are unsuitable for Treatment or for the continuation of Treatment (as the case may be) the Company shall be entitled to discontinue Treatment forthwith and will notify the Customer as soon as reasonably practicable. The Company will invoice the Customer for costs incurred and Treatment actually carried out and Clause 3 shall apply to payment as if Treatment had been completed. Unless otherwise agreed in writing by the Company the Customer shall collect the Goods at its own risk and expense from the Premises. Collection of the Goods shall take place within ten working days of receipt of notification from the Company that the Goods are unsuitable for Treatment in the absence of which the Company may at its election apply the provisions of clause 7.6 as if they referred to the Goods.

13.0     Indemnity

13.1     The Customer shall indemnify and keep the Company indemnified from and against any liability of any kind to any third party howsoever arising (whether in contract tort or otherwise and including, but not limited to, liability arising from the negligence of the Company or from the negligence of any person for whom the Company is vicariously liable) in respect of or in connection with:

(i) any defect in the Goods; and/or

(ii) any inadequate or inaccurate instructions information specifications drawings or technical descriptions given by the Customer its employees or agents relating to the Treatment of the Goods; and/or

(iii) any defect in the Customer's title to the Goods or authority to contract with the Company for Treatment of the Goods; and/or

(iv) any loss injury or damage of any kind (whether direct indirect or otherwise and including but not limited to any loss of profit and/or any incidental consequential or special loss or damage of any description) arising out of in respect of or in connection with the supply of the Treated Goods or their use or resale; and/or

(v) any losses claims demands or damages incurred by the Company exceeding the Company's liability pursuant to these Conditions.

13.2     The Customer shall indemnify the Company against all losses damages costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent copyright design trade-mark or other industrial or intellectual property rights of any person which results from the Company's use of the Customer's design drawing specification tooling or goods (including but not limited to the Goods).

14.0    Force Majeure

The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Company's obligations in relation to the Goods if the delay or failure was due to any cause beyond the Company's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Company's reasonable control:

(i) acts of God explosion flood tempest fire or accident;

(ii) war or threat of war sabotage insurrection terrorism civil disturbance or requisition;

(iii) acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;

(iv) import or export regulations or embargoes;

(v) strikes lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);

(vi) difficulties in obtaining raw materials labour fuel parts or machinery;

(vii) power failure or breakdown in machinery.

15.0     Waiver

The rights of the Company or the Customer shall not be prejudiced or restricted by any indulgence or forbearance by either party to the other and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach.

16.0     Severance

In the event of any of the words provisions terms and/or Conditions herein contained being unenforceable or void for any reason whatsoever each word provision term or Condition (including any paragraph or sub-paragraph herein contained) shall be deemed to be severable from the remaining words provisions terms or Conditions and such remaining words provisions terms or Conditions shall remain in full force and effect.

17.0     Notices

Notices to be served under these Conditions shall be in writing and delivered by hand or sent by first class prepaid post to either party at its last known place of business. Notices sent by post shall be deemed served 2 working days after posting and notices sent by hand shall be deemed served when received. Notices may be sent by the Customer to the Company by email to the addressnotices@wallworkht.com and shall be acknowledged upon which event shall be deemed to be served.

18.0     Proper Law

18.1     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, the law of England and Wales.

18.2     The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).

19.0      Third Party Rights

The provisions of the Contracts (Rights of Third Parties) Act 1999 shall be excluded from this Contract

Issue 4.  15 September 2014.

 

 WHT Holdings Ltd Terms and Conditions of Purchase

1.0      Interpretation

1.1     The Purchaser: Wallwork Heat Treatment Ltd Contract : The order and the seller’s acceptance of the order Goods : Any goods in the contract to be bought by the Purchaser from the Seller (including any part or parts of them) Order : The Purchaser’s written instruction to supply the goods, incorporating these conditions. Seller : The person or company who accepts the Purchaser’s order

1.2    A reference to a particular law is a reference to it as it is in force for the time being taking into account any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3    A reference to one gender includes a reference to the other gender.  

2.0    Application of terms

2.1    Subject to any variation under condition 2.4, these conditions are the only conditions upon which Wallwork Heat Treatment ltd is prepared to deal with the seller and they shall govern the Contract to the entire exclusion of all other terms and conditions. 

2.2    Each order for Goods by Wallwork Heat Treatment Ltd from the seller shall be deemed to be an offer by Wallwork Heat Treatment Ltd to buy Goods subject to these conditions and no order shall be accepted until the seller either expressly by giving notice of acceptance, or impliedly by fulfilling the order, in whole or part accepts the offer.   

2.3    No terms or conditions endorsed upon delivery with or contained in the Seller’s quotation,  acknowledgement  or acceptance of order, specification or similar document shall form part of the Contract and the Seller waives any right which it might otherwise have to rely on such terms and conditions.

2.4    These conditions apply to all Wallwork Heat Treatments purchases and any variation to these conditions shall have no effect unless expressly agreed in writing and signed by a Director of Wallwork Heat Treatment Ltd.  

3.0    Acceptance   

3.1    This order shall not be binding upon the Purchaser until the Purchaser has received the signed acknowledgment copy order from the Suppler. The Purchaser reserves the right to reject any acceptance which is received by the Purchaser more than fourteen working days after the date of the order; Other Terms and Conditions shall only apply when expressly agreed in writing by the Purchaser             

4.0    Authority   

4.1    The Purchaser shall not be liable for any order, order amendment or instructions to proceed with orders unless and until authorised or confirmed on the Purchaser's printed order or amendment form, or confirmation on fax 

5.0    Quality and defects

5.1    The supplier shall notify Wallwork Heat Treatment Ltd in writing of any known non-conforming product prior to despatch. Wallwork Heat Treatment Ltd will review and advise the supplier in writing of the decision as to whether the products can be delivered. The supplier will then deliver the product in the agreed condition on the agreed date. 

5.2    The supplier shall only supply goods and products in line with the agreed process definition and condition of supply. The Supplier must notify Wallwork Heat Treatment Ltd in writing of any proposed deviations from the standard and await written authority to amend process or condition of supply. Wallwork heat Treatment Ltd will confirm in writing to the supplier of acceptance.

5.3   The supplier shall implement and be responsible for processes & procedures ensure they identify & prevent the supply of

i) non-conforming - faulty – materials - goods – services or components.

ii) counterfeit – materials - goods – services or components 

iii) Material – goods – services  or components which are not fit for purpose and therefore inherently unsafe.

iv) Documents which are falsified – counterfeit which indicates a false status for the supplied materials – goods – services or components

5.4    The goods shall be the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the order and specification supplied or advised by the Purchaser.

5.5    The Purchaser’s rights under these conditions are in addition to the statutory conditions implied in favour of the Purchaser by the Sale of Goods Act 1979. 

5.6    At any time prior to the delivery of the Goods to the Purchaser, the Purchaser shall have the right to inspect and test the Goods at all times. 

5.7    Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract.

5.8    If any of the Goods fail to comply with the provisions set out in condition 3, the Purchaser shall be entitled to avail itself of any one or more remedies listed in condition 15.

5.9   Where applicable the Seller shall keep the following records i)   manufacturer, distributor, repair and inspection report ii)  original certificates of conformity (manufacturer and sub-tier), copies of air worthiness certificates iii)  non-conformance, concession and corrective action records iv)  Lot traceability records v) environmental or shelf life records vi) the authority of the inspection and release of the material – goods -services or components and any nominated authority by the purchaser (specific individuals)

5.9.1   Records of product origin, conformity and shipment shall be maintained by the Seller for a minimum of fifteen (10) years, or as required by contract. Records shall be made available by the Seller for review by the Purchaser, its customers, agents or regulatory authorities in accordance with contract or regulatory requirements. 

6.0    Delivery

6.1    The Goods shall be delivered to the Purchaser’s place of business or to any place of delivery as is agreed by the Purchase in writing prior to the delivery of the Goods. 

6.2    The date of the delivery will be specified on the order. The Seller will deliver the goods on the date of the order. Any delivery either early or late to that date must be agreed in writing between the Purchaser and the Seller.

6.3    The Seller shall ensure that each delivery is accompanied by a delivery note which shows, amongst other things, the order number, date of order number of packages, and the contents. In the case of part delivery the outstanding balance remaining to be delivered.

6.4    Unless otherwise stipulated by the Purchaser in the order, deliveries shall only be accepted by the Purchaser in normal business hours.

6.5    If the Goods are not delivered on the due date, then without prejudice to any other rights which it may have, the Purchaser reserves the right to cancel the Contract in whole or in part, refuse to accept any subsequent delivery of the Goods which the Seller attempts to make, recover from the Seller any expenditure reasonably incurred by the Purchaser in obtaining the Goods in substitution from another supplier and claim damages for any additional costs, loss or expenses incurred by the Purchase which are in any way attributable to the Seller’s failure to deliver the Goods on the due date.

6.6    If the Seller requires the Purchaser to return any packaging material to the Seller, that fact must be clearly stated on the delivery note delivered to the Purchaser and any such packaging material shall only be returned to the Seller at the cost of the Seller.

6.7    If the Goods are delivered to the Purchaser in excess of the quantities ordered, the Purchaser shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense.

6.8    Any time or period for delivery, despatch or completion shall be of the essence.

6.9    The Purchaser reserves the right to reject any goods if any latent defect in the Goods has become Apparent.

6.10  The Purchaser reserves the right without price variation to amend delivery dates in the event of the Purchaser’s customer re-scheduling the deliveries required from the Purchaser.  

7.0    Subcontracting

7.1    The supplier will require written authorisation from Wallwork Heat Treatment Ltd to use sub-tier suppliers and to flow down Wallwork Heat Treatment Ltd purchase requirements & information to the sub-tier suppliers (this includes access as referenced in 8.1 & 8.2). All information flowed down must be agreed prior, in writing by Wallwork Heat Treatment Ltd. The supplier shall remain responsible for the delivery and quality performance of the order.    

8.0    Inspection

8.1    The Purchaser’s inspector or representative and any inspector or representative of the Purchaser’s Customer or his Agent shall be entitled on the Purchaser’s authority to witness the inspection or testing of goods or work which are the subject matter of the order at any reasonable time at the Seller’s place of work or at the place of work of any of the Seller’s subcontractors. If required by the Purchaser, the Seller shall give the Purchaser adequate notice of the Seller’s works test which the Purchaser will be entitled to attend. The Seller will provide the Purchaser with such certificates as the Purchaser may require.

8.2    The Purchaser also reserves the right of access by the Purchaser’s representatives, its customers and any regulatory bodies to any of the places of work of the Seller or its subcontractors to review all applicable data and records involved in the order.

8.3    The Supplier of any Sub-Supplier shall maintain any or all records of Business, Supply, Manufacturing, Processing or Services for Wallwork Heat Treatment Ltd in a safe and secure manner for a period of not less than fifteen (10) years from the date of Supply. 

9.0    Price

9.1    Unless specifically agreed otherwise in writing, all prices shall be fixed and firm and not subject to any form of surcharge or variation.          

10.0  Indemnity

10.1  The seller shall keep the Purchaser indemnified in full against all direct , indirect and consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Purchaser as a result of or in connection with:

i) defective workmanship, quality or materials II)  an infringement or alleged infringement of any intellectual rights  caused by the use, manufacture or supply of goods : and  Iii) any claim made against the Purchase in respect of any liability, loss, damage, injury, cost or expense sustained by the Purchaser’s employees or agents or by any customer or third party to the extent that such liability , loss damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure in performance of the terms of the Contract  by the Seller.

11.0  Payment 

11.1  Payment for the Goods shall not be of the essence of the Contract.

11.2  Without prejudice to any other right or remedy, the Purchaser reserves the right to set off any amount. Owing at any time from the Seller to the Purchaser against any amount payable to the Purchaser to the Seller under the Contract.

11.3  In attention to the following requirements could delay payment

     I)  to provide any certificate or other documentation required under the order. All risks in such materials remains with the Seller until delivery to Purchaser. All payment made will be without prejudice to the Purchase’s rights should the Goods, materials or service prove unsatisfactory or not in accordance with the Purchaser’s order. 

12.0 Risk / Property

12.1 The Goods shall remain at the risk of the seller until delivery to the Purchaser is complete (including of loading & stacking) when ownership of the goods shall pass to the purchaser.

13.0  Confidentiality

13.1 The seller shall keep in strict confidence all technical & commercial know how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the seller by the purchaser or its agents and any other confidential information concerning the purchasers business or its products which the seller may obtain and the seller shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors  as need to know  the same for the purpose of discharging the seller’s obligations  to confidentiality as bind the seller.

14.0 Termination 

14.1 The purchaser shall have the right at anytime and for any reason to terminate the contract in whole or in part by giving the seller written notice whereupon all work on the contract shall be discontinued and the Purchaser shall pay to the Seller fair & reasonable compensation for the work in progress at the time of the Termination but such compensation shall not include loss of the anticipated profits or any consequential loss.

14.2 The Purchaser shall have the right at any time by giving notice in writing to the seller to terminate the Contract forthwith if:

i. The Seller commits a material breach of any of the terms and conditions of the Contract or ii. Any distress, execution or other process is levied upon any of the assets of the Seller or iii. The seller has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any stator provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or involuntary) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the for the appointment of an administrator of the Seller or notice of intention to appoint an administrator is given by the Seller or its Directors or by a qualifying floating charge holder (as defined in paragraph 14 of schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented by any court for the winding up of the Seller or for the granting of an administration order in respect of the Seller, or any preceding’s are commenced relating to the insolvency or possible insolvency of the Seller iv. The Seller ceases or threatens to cease to carry on its business; or v. The financial position of the Seller deteriorates to such an extent that in the opinion of the Purchaser the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy   

14.3 The termination of the Contract, however arising, shall be without prejudice to the rights of the Purchaser accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable not withstanding termination.

15.0 Remedies 

15.1 Without prejudice to any other right or remedy which the Purchaser may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract, the Purchaser shall be entitled to avail itself or any one or more of the following remedies at its discretion, Whether or not any part of the Goods have been accepted by the Purchaser.

I. Rescind the order. II. To reject the Goods (in whole or part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller. III. At the Purchaser’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled. IV. To refuse to accept any further deliveries of the Goods without and liability to the Seller V. To carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract; and VI. To claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract. 

16.0  Assignment 

16.1 The seller shall not be entitled to assign the Contract or any part of it without prior written consent of the Purchaser

16.2 The purchaser may assign the Contract or any part of it to any person, firm or company.

17.0 Force Majeure

17.1 The Purchaser reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Purchaser including, without limitation, acts of god, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes, or other labour disputes (whether or not relating to either party’s workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

18.0 General 

18.1 Each right or remedy of the Purchaser under the contract is without prejudice to any other right or remedy of the Purchaser whether under the contract or not.

18.2  If any provision of the Contract is found by any court, tribunal or administrative body of contempt jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or un reasonable it shall, to the extent of such illegality , in validity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the contract  and the remainder of such provision shall continue in full force and effect.

18.3 Failure or delay by the Purchaser in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

18.4  Any waiver by the Purchaser of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract. 

18.5  The parties of the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts ( Rights of Third Parties) Act 1999 by any person that is not a party to it.

18.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be Governed by English Law and the parties submit to the non-exclusive jurisdiction of English courts 

CODE OF CONDUCT 

Wallwork Heat Treatment Ltd is committed to working in an open and ethical manner.  We adopt standards and procedures to ensure that all workers throughout the group and the supply chain are treated with respect and dignity and ensure our operational processes are environmentally responsible. 

Wallwork heat Treatment Ltd reserves the right to reasonably change the requirements of this Code of Conduct. In such event we expect the supplier to accept those reasonable changes.  

The supplier shall:  

Prohibition of corruption and bribery  • to tolerate no form of and not to engage in any form of corruption or bribery, including any payment or other form of benefit conferred on any government official for the purpose of influencing decision making in violation of law.  

Respect for the basic human rights of employees  • to promote equal opportunities for and treatment of its employees irrespective of skin colour, race, nationality, social background, disabilities, sexual orientation, political or religious conviction, sex or age;  • to respect the personal dignity, privacy and rights of each individual;  • to refuse to employ or make anyone work against his will;  • to refuse to tolerate any unacceptable treatment of employees, such as mental cruelty, sexual harassment or discrimination;  • to prohibit behaviour including gestures, language and physical contact, that is sexual, coercive, threatening, abusive or exploitative;  • to provide fair remuneration and to guarantee the applicable national statutory minimum wage;  • to comply with the maximum number of working hours laid down in the applicable laws;  • to recognize, as far as legally possible, the right of free association of employees and to neither favour nor discriminate against members of employee organizations or trade unions.  

Prohibition of Child Labour  • to employ no workers under the age of 15 or, in those countries subject to the developing country exception of the ILO Convention 138, to employ no workers under the age of 14.  

Management Systems  • to have in place policies and procedures which cover: - Quality Management in accordance with ISO9001 - Environmental - Health and Safety  

Supply Chain   

• to promote among its suppliers compliance with this Code of Conduct;  • to comply with the principles of non discrimination with regard to supplier selection and treatment.  

 Issue 1.  05 June 2018

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