NWTT Products Limited – The Account Terms
1. INTERPRETATION
1.1 The defined terms used within this Agreement shall take the meanings given to them in the Sale Terms, unless otherwise set out within the Form, these Account Terms or where the context otherwise provides.
Account Terms: means these terms and conditions.
Agreement: shall take the meaning given to it in the Form.
Change of Control: occurs if a person or body corporate who controls any body corporate ceases to do so if another person or body corporate acquires control of it by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate, or as a result of any powers conferred by the articles of association or any other document regulating that or any other body corporate.
Commencement Date: the date on which NWTT signifies its acceptance of the application in writing following receipt of the signed Form.
Credit Limit: means the credit limit which the Customer is entitled to as set out within the Form or otherwise varied in accordance with clause 3 from time to time.
Customer: shall take the meaning given to it in the Form.
Form: means the document headed as such and which the Customer is required to sign on making an application for a credit account and prior to the Agreement being formed.
Guarantor(s): shall take the meaning given to it in the Form.
Payment Terms: shall mean the special terms (where applicable) on which the Customer shall pay NWTT for the Goods and/or Services as set out in the Form.
NWTT: North West Timber Treatment Limited, a company incorporated and registered in England and Wales with company number 01993494 and whose registered office is at is Nwtt House Lockett Road, South Lancs Industrial Estate, Ashton In Makerfield, Wigan, WN4 8DE.
Sale Terms: means the terms and conditions set out in the Appendix (as varied by the terms of this Agreement) and which form the basis on which NWTT shall sell any Goods and/or provide any Services to the Customer.
Term: means the term of this Agreement.
1.2 The Sale Terms shall take effect as if set out in the body of these Account Terms save that where and to the extent that there is a conflict between the Sale Terms and these Account Terms, these Account Terms shall prevail to the extent of the inconsistency.
1.3 Where and to the extent that any of the terms set out within the Sale Terms take effect in accordance with clause 1.2 as if set out within this Agreement, references within the Sale Terms shall, in the context of these Account Terms be taken as referring to this Agreement.
2. CONTRACT FORMATION AND DURATION
2.1 These Account Terms set out the basis on which NWTT grants the Customer with a credit account save that and for the avoidance of doubt the Agreement shall not be formed until such time as the Customer has signed and returned the Form to NWTT as directed in the Form and NWTT has signified its acceptance of the application in writing.
2.2 Once formed this Agreement shall remain in force indefinitely from the Commencement Date unless and until terminated in accordance with clause 7 below.
3. PURCHASING GOODS AND/OR SERVICES AND CREDIT LIMIT – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
3.1 Individual Orders made by the Customer from time to time and Contracts entered into throughout the Term shall be made in accordance with the mechanism set out in the Sale Terms save to the extent that the same are amended, varied or added to by these Account Terms and the Form.
3.2 The Customer may from time to time raise Orders to enter into Contracts up to a cumulative amount not exceeding the Credit Limit.
3.3 The Customer agrees and acknowledges that NWTT may decrease the Credit Limit at its absolute discretion on immediate notice in the event that the Customer has breached the Agreement or where NWTT reasonably believes that it may do so.
3.4 In the event that the Customer would like to increase the Credit Limit then it must make a written application to NWTT. NWTT shall confirm whether such application is accepted or rejected and in the event that it accepts the application, it may at its absolute discretion amend any of the terms of this Agreement, including but not limited to the Payment Terms.
3.5 NWTT shall raise invoices in accordance with the mechanism specified in the Sale Terms from time to time for the balance of all Charges incurred by the Customer and the Customer agrees that unless otherwise specified in the Payment Terms, it shall pay such balance within 30 days of the end of the month in which the invoice is raised.
3.6 NWTT may at its discretion, review the terms of this Agreement if the Customer is subject to a Change of Control.
3.7 Notwithstanding the amount of any payment received from the Customer by NWTT, all payments received by it shall be applied to the oldest outstanding sums due and payable to it by the Customer.
4. NON-SOLICITATION
4.1 A party shall not, without the prior written consent of the other party, at any time from the Commencement Date to the expiry of 24 months after the later of the completion date of the final Agreement or the end of the, solicit or entice away from that party or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of that party.
4.2 Where any consent is given by NWTT in accordance with clause 4.1, such consent shall be subject to the Customer paying to the consenting party a sum equivalent to 20% of the then current annual remuneration of the NWTT employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by NWTT to that employee, consultant or subcontractor.
5. WARRANTIES
5.1 Each party warrants that:
(a) it has full power and authority to carry out the actions contemplated under this Agreement;
(b) its entry into and performance of this Agreement will not infringe the intellectual property rights of any third party or cause it to be in breach of any obligations to a third party; and
(c) so far as it is aware, all information, data and materials provided by it will be true, accurate and complete in all material respects, and it is entitled to provide the same to the other without recourse to any third party.
5.2 Except as expressly provided in this Agreement, there are no conditions, warranties or other terms binding on the parties with respect to the actions contemplated by this Agreement. Any condition, warranty or other term in this regard that might otherwise be implied or incorporated into this Agreement, whether by statute, common law or otherwise, is, to the extent that it is lawful to do so, excluded by this Agreement.
6. PERSONAL GUARANTEE – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
6.1 Each Guarantor irrevocably guarantees to pay to NWTT all monies which are now or may at any time after the date of this Agreement become due or owing to NWTT by the Customer pursuant to or in connection with the Agreement or arising further to entering into it and notwithstanding that the Guarantor may not have notice of any neglect or omission on the Customer’s part under the Agreement.
6.2 Where the Guarantor is more than one person:
(a) each of them are jointly and severally liable under this Agreement;
(b) NWTT shall have the same rights as if the Agreement were a separate guarantee by each Guarantor;
(c) NWTT may settle with or release from liability any of them, without releasing or reducing the liability of the others; and
(d) the liabilities of each of them under this Agreement is severable. If the Agreement, or any provision of it, is unenforceable against any of them, it will not affect the enforceability or continuation of the Agreement in respect of any others.
6.3 As a separate and independent obligation each Guarantor as principal obligor agrees to indemnify NWTT against any Losses suffered as consequence of material breach or non-performance by the Customer of its obligations and/or liabilities pursuant to the Agreement.
6.4 This Guarantee shall be a continuing guarantee and the liability of the Guarantor under this Agreement shall not be released or diminished by any variation in the terms of the Agreement or forbearance, neglect or delay by NWTT in seeking performance of the obligations of the Customer or the Guarantor under the or any granting of time for such performance.
6.5 If the Customer is in breach or default in the performance of any obligation or liability under the Agreement the Guarantor undertakes forthwith on demand unconditionally to perform or procure the performance of the obligation or liability in such manner to ensure that NWTT shall receive the entire benefit it would have received had such obligation or liability been performed or discharged by the Customer.
6.6 The Guarantor undertakes that the Guarantor shall not during the term of the Agreement do or omit to do anything which might lead to any of the events set out in clause 7.2(c) – (m) to occur in relation to the Customer.
6.7 NWTT shall not be obliged to take any action or obtain judgment against the Customer before taking steps to enforce any of its rights or remedies against the Guarantor.
6.8 Any demand or notice on under this clause 6 shall be in writing signed by an officer of NWTT and will be served on the Guarantor personally at the address set out above or any other place where the Guarantor may be present (including but not limited to the address of the Customer).
7. TERMINATION OF THIS CONTRACT – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
7.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement by serving no less than 10 Business Days’ notice to the other for any reason.
7.2 Without affecting any other right or remedy available to it NWTT may terminate (or suspend) this Agreement with immediate effect by giving written notice to the Customer:
(a) if the Customer commits a material breach of any term of this Agreement (or a Contract) which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 Business Days after being notified in writing to do so;
(b) if the Customer repeatedly breaches any of the terms of this Agreement (or a Contract) in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement (or a Contract);
(c) on the expiration of 12 months from the date on which a Contract was previously entered into;
(d) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
(e) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company);
(h) the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(j) the Customer (being an individual) is the subject of a bankruptcy petition or order;
(k) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer's assets and such attachment or process is not discharged within 10 Business Days;
(l) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2(c) to clause 7.2(k) (inclusive);
(m) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(n) the Customer is subject to a Change of Control, or
(o) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8. CONSEQUENCES OF TERMINATION – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
8.1 On termination of this Agreement, each Contract then in force at the date of such termination and the obligations of the Guarantor under this Agreement in respect thereof shall continue in full force and effect, unless otherwise terminated in accordance with the provisions of the Sale Terms.
8.2 On termination of this Agreement, unless such items are needed by it to perform its obligations under a Contract (and only until the end of such time), each party shall immediately:
(a) return or destroy (as directed by the other party) any documents, handbooks, or other information or data provided to it by the other party for the purposes of this Agreement. If reasonably required by the other party, it shall provide written evidence in the form of a letter signed by it that these have been destroyed and that it has not retained any copies of them; and
(b) return all of the other party's equipment and materials, failing which, the other party may enter the relevant premises and take possession of them. Until these are returned or repossessed, that party shall be solely responsible for their safe-keeping.