PENTA PRECISION ENG. LIMITED TERMS & CONDITIONS OF SALE DATED 01.03.2021
Terms and conditions for the sale of goods and services
The Customer's attention is particularly drawn to the provisions of clause 13.
1 INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Call Off Deliveries: means Goods (and related Services) which are ordered by the Customer but which are stored by the Supplier and delivered as requested by the Customer (the period for delivery shall be no more than 12 months from the Order date).
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 19.4.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Customer Delivery Location: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning set out in clause 4.2
Force Majeure Event: has the meaning given to it in clause 15.1.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Supplier's quotation as the case may be.
Reserve Engineering: the process of testing, analysing and taking apart an object to see how it is manufactured, functions and works in order to duplicate or enhance the object including making modifications to designs of components and tooling.
Scheduled Deliveries: occurs where a large Order is placed by the Customer in circumstances where a schedule is agreed for the delivery of the Goods (and related Services) over a period of time (the period for delivery shall be no more than 12 months from the Order date).
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification. For the avoidance of doubt the Supplier does not provide installation, fitting or commissioning services.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: Penta Precision Eng. Limited registered in England and Wales with company number 03478011.
Supplier Materials: has the meaning set out in clause 8.1.6.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 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;
1.2.4 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; and
1.2.5 a reference to writing or written excludes faxes and e-mails.
2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order (called an ‘order acknowledgement’) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's marketing literature are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 7 days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.8 The Customer hereby confirms and warrants that it is entering into the Contract in the course of business and is not a consumer.
3 GOODS
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
4 DELIVERY OF GOODS
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and special storage instructions (if any); and
4.1.2 if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 Unless otherwise agreed in writing, the Customer shall collect the Goods from the Supplier's main trading premises (as notified to the Customer) or such other location as may be advised by the Supplier before delivery (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready. Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
4.3 In the event that the Supplier agrees in writing to deliver the Goods, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing at any time (Customer Delivery Location) after the Supplier notifies the Customer that the Goods are ready. If the Goods are delivered by the Supplier delivery of the Goods shall be completed on the Goods’ arrival at the Customer Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 Notwithstanding clause 4.4, in the event that Scheduled Deliveries or Call Off Deliveries are agreed:
4.5.1 the Supplier reserves the right to give notice to the Customer at any time that all Goods ordered and not yet delivered must be collected within 10 Business Days, if the parties had agreed that the Goods would be collected by the Customer, or that all such Goods will be delivered to the Customer Delivery Location within 10 Business Days, if the parties had agreed that the Goods would be delivered by the Supplier; and
4.5.2 if 12 months after the relevant Order was placed all of the Goods have not yet been delivered the Supplier shall give 5 Business Day’s notice at any time after the 12 month period has lapsed to the Customer that all Goods ordered and not yet delivered must be collected within 10 Business Days, if the parties had agreed that the Goods would be collected by the Customer, or that all such Goods will be delivered to the Customer Delivery Location within 10 Business Days, if the parties had agreed that the Goods would be delivered by the Supplier.
4.6 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.7 If the Customer fails to accept or take delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
4.7.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If 10 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them (as appropriate), the Supplier may resell or otherwise dispose of part or all of the Goods.
4.9 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
4.10 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5 QUALITY OF GOODS
5.1 In respect of Goods supplied or Services provided which involve the Supplier carrying out Reverse Engineering, the Customer acknowledges and agrees that Reverse Engineering is by its nature experimental and involves excessive variables and therefore the Supplier does not give any warranty in respect of such Goods and/or Services.
5.2 Notwithstanding clause 5.1, the Supplier warrants that on delivery the Goods shall:
5.2.1 conform in all material respects with their description and the Goods Specification; and
5.2.2 be free from material defects in design, material and workmanship.
5.3 Subject to clause 5.4, if:
5.3.1 the Customer gives notice in writing within 21 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.2;
5.3.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.3.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.4 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.2; if:
5.4.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.3;
5.4.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.4.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
5.4.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.4.6 the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.2.
5.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.3.
6 TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 the Supplier receiving payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.2.2 to clause 14.2.13; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.2.2 to clause 14.2.13, then, without limiting any other right or remedy the Supplier may have:
6.5.1 the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7 SUPPLY OF SERVICES
7.1 The Supplier shall provide the Services to the Customer in accordance with the Service