PENTA PRECISION ENG. LIMITED TRADING AS PRODUCTION TOOLING TECHNOLOGY TERMS & CONDITIONS OF SALE
1. In these conditions the following meanings apply:
'Buyer': the person who orders, buys or agrees to buy goods and/or services from the Seller.
"Seller": the person who sells or agrees to sell goods and/or services to the Buyer.
'goods': the goods (including any instalment of the goods or any parts for them) and services in which the seller is to supply in accordance with the conditions.
'Writing': includes telex cable, facsimile transmission, email and comparable means of communication.
2. In these conditions words denoting the singular include the plural and vice versa, words denoting gender shall include all genders and words denoting persons shall include bodies corporate and vice versa.
Basis of the sale
3. The Seller shall sell and the Buyer shall purchase the goods in accordance with any written quotation of the Seller that is accepted by the Seller subject in either case to these conditions, which govern the contract to the exclusion of any other terms and conditions.
4. No variation to these conditions shall be binding unless agreed in writing by a Director of the Seller.
5. The Seller's employees or agents are not authorised to make any representations concerning the goods unless confirmed by the Seller in writing. In entering into the contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations that are not so confirmed.
Quotations, orders and specifications
6. A quotation does not constitute an offer, and the Seller may withdraw or revise the same at any time before accepting the Buyer's order.
7. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller.
8. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order according to the specification submitted by the Seller and for giving the Seller any necessary information relating to the goods within a sufficient time to enable the Seller to form the contract in accordance with its terms.
9. Except as specifically stated in the Seller's quotation, a quotation, and the contract, includes only the supply of the goods indicated. Installation and/or commissioning are the responsibility of the Buyer.
10. Delivery dates or times stated in quotations are estimates only.
11. Unless otherwise agreed in writing, the Seller's quotation shall remain valid for 30 days.
12. The price is exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay to the Seller.
13. The price of the goods quoted or otherwise shown are estimates only, based upon circumstances then prevailing. The Seller may at any time before despatch of the goods, increase prices to take account of increases in direct costs or overheads or taxation, exchange rate movement, or otherwise, or may alter or withdraw discount(s) shown.
14. Where the Buyer either (i) gives instruction delaying delivery or acceptance, or (ii) makes alterations to the specification or delivery or otherwise of the goods, the Seller may at its option increase the price of the goods to cover the any changes in cost of supply or loss of production or loss in sales.
15. Prices are ex-works Portsmouth unless otherwise specifically stated.
16. Unless otherwise agreed in writing by the Seller the price excludes the cost of packing.
17. The Buyer agrees to pay a reasonable amount for the cost of proper packaging materials for the goods in transit. This may include packing materials or cases for which no credit will be allowed even if they are returned undamaged to the Seller
18. Orders accepted shall be subject to a minimum of £ 50.00.
19. Unless otherwise agreed in writing;
20. Full payment of the total invoice value of the order shall be paid with the order.
21. The existence of credit terms for the Buyer shall only be in place if agreed and confirmed in writing by a Director of the Seller, who may withdraw credit terms for any Buyer who is, or has been persistently, in default.
22. If credit terms have been agreed and not withdrawn, payment is due in full on the 21st of the month following in which delivery took place, was tendered, or was suspended.
23. All cheques payable for goods supplied by Penta Precision Eng. Limited, the Seller, shall be made payable to Penta Precision Eng. Limited.
24. If the Buyer defaults on any of these terms;
25. Payment in respect of all goods delivered by the Seller to the Buyer whether before or after the default shall become due and payable forthwith.
26. The Seller may withhold further deliveries to the Buyer.
27. The Seller shall be entitled to charge interest on all outstanding amounts at the rate of 5 % over National Westminster Bank base rate current from the date of the invoice to the date of payment, interest to run as well after as before Judgement and as well after as before any order resolution or appointment for the liquidation, winding-up, receivership or Bankruptcy of the Buyer in the event that the conditions of Clause 20 or Clause 21 are not met.
28. Invoices not settled in full with the order or within any credit terms agreed in writing by the Seller will be subject to additional charges to reflect any change in the exchange rate that is adverse to the Seller.
29. The official rate of exchange shall be the closing rate of exchange in the London Market as published in the Financial Times.
30. Any payment by the Buyer after default may be applied at the option of the Seller to any outstanding invoice or to interest before capital.
31. The Buyer shall not be entitled to withhold payment of any amount payable by reason of any dispute or claim by the Seller in connection with any sale and in the case of any short delivery or delivery of damaged goods shall remain liable to pay the full invoice of all other goods delivered or available for delivery.
32. Payment terms may be revised as a result of information received from relevant credit checks.
33. The Buyer shall not be entitled to make any deduction, withholding, or set-off, in respect of any amount claimed from, or owing by, the Seller, on any account whatsoever.
34. Clauses 34 to 37 will apply if the goods are for export from the United Kingdom.
35. Where goods are sold CIF or FOB or by reference any other international trade term defined in Incoterms (published by the International Chamber of Commerce) the meaning of such term contained in the then current edition of Intercoterms shall apply except where inconsistent with anything in these conditions.
36. Unless otherwise agreed in writing before the Seller acknowledges the Buyer's order, the Buyer agrees prior to shipment to pay the full price of the goods as detailed in the Seller's invoice including goods and materials, delivery and any applicable tax, and any interest relating thereto and the Buyer agrees the Seller will commence delivery of the goods when cleared funds are received in the Seller's bank account.
37. If the Seller has agreed in writing prior to the Seller acknowledging the Buyer's order that the price shall be secured by an irrevocable letter of credit in a form satisfactory to the Seller, and the Buyer shall establish such a letter of credit, and have it confirmed by a London bank acceptable to the Seller, immediately upon receipt of the Seller's acknowledgement of the order. All costs and expenses of the Buyer or the Seller in connection with the letter of credit shall be borne by the Buyer.
38. Where the Seller acts on instructions of or appearing to come from the Buyer or a person authorised by the Buyer, the Buyer shall accept any such action and pay any attributable cost increase.
39. Delivery of the goods takes place as follows;
40. If the goods are collected from the Seller's premises or the Seller's supplier's premises by or on behalf of the Buyer, when loaded onto the collecting vehicle or when leaving the premises if earlier;
41. If the goods are delivered by the Seller in its own vehicle, when loaded off the delivery vehicle (or when the same would have been offloaded if suitable equipment and labour - provision of which is the responsibility of the Buyer - had been available);
42. If the goods are delivered by a carrier, when loaded on to the carrier's vehicle or placed into the hands of the carrier;
43. In case of export sale, as provided in the applicable Incoterm, and otherwise when the goods leave the Seller's or Seller's supplier's premises.
44. Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
45. Where a fixed delivery time period has been agreed in writing between the Seller and the Buyer, that fixed delivery time period shall run from the time the Seller has received all information, goods, materials, samples or drawings necessary to commence, and any fixed delivery date shall similarly be subject to the Seller receiving such information, goods, materials, samples, or drawings when necessary.
46. The goods may be delivered in instalments unless otherwise agreed, in which case each instalment shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
47. Where successive delivery instalments are made or are due to be made to the Buyer, or to Buyers that are associated with each other, whether as multiple orders or as instalments under a single order, if the Buyer is in default of payment or otherwise under any earlier delivery or instalment, the Seller my suspend any later delivery without prejudice to the Buyer's obligation in respect either of that delivery or instalment or the earlier delivery/deliveries or instalments.
48. If the Buyer fails to take delivery of the goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by any reason of the Seller's fault) then without prejudice to any other right or remedy available to the Seller the Seller may: -
49. Store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
50. Sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the contract or charge the Buyer for any shortfall below the price under the contract.
51. Where goods are produced to a Buyer's order for calling off and no delivery dates are specified then any goods not called off and delivered within twelve months of the seller's acceptance of the Buyer's order shall have deemed to have been called off and may be invoiced and delivered or invoiced and stored at the Buyer's risk.
Risk and Property
52. Risk of damage to or loss of the goods shall pass to the Buyer at the time of delivery (or at the time of storage under Clause 49 above) or if the Buyer wrongfully fails to take delivery of the goods the time when the Seller has tendered delivery of the goods.
53. Notwithstanding delivery and the passing of risk in the goods or any other provision of these conditions the property in the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the goods, delivery and any applicable tax, and any interest relating thereto, and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
54. Until such time as the Buyer has paid the Seller in full for the goods and all other goods which the Seller has supplied to the Buyer: -
55. The Buyer shall hold the goods as the Seller's fiduciary agent and bailee for the Seller.
56. The Buyer irrevocably authorises the Seller's representatives to enter any premises where they believe the goods to be and remove them if the Buyer is in default.
57. If the Buyer sells the goods or any of them in their original state and in the ordinary course of business then, only as between the Seller and Buyer, they shall be deemed to be the Seller's agent and be able to pass good title to them. The proceeds therefrom shall be held on trust in a separate bank account for the Seller: full and complete financial records shall be maintained by the Buyer to enable the Seller to trace any proceeds being held on trust and on demand, all rights, privileges and advantages from such sale shall be transferred to the Seller.
58. The Seller may trace the proceeds of sale that the Buyer receives into any bank or other account that the Buyer maintains.
59. If the Buyer sells the goods the Seller may by written demand require the Buyer to assign to the Seller the Buyer's rights to recover the price from its purchaser.
60. The Buyer shall not assign to any other person any rights arising from the sale of the goods without the Seller's written consent until such time as the buying price is paid in full (see Clause 53)
61. The Buyer shall store the goods separately from any other goods until they become the Buyer's property or until the Buyer sells the goods and shall keep the goods properly stored, protected, insured and identified as the Seller's property.
62. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
63. The Buyer is advised to check all deliveries immediately on arrival and to report instances of alleged damage or shortage, in writing, both to the Seller and to the carrier, as soon as possible and in any event within three days of delivery.
Seller's Warranty and Liability
64. Subject to the conditions set out below the Seller warrants that the goods will correspond with their specification and are of merchantable quality at the time of delivery.
65. The above warranty is given by the Seller subject to the following conditions:
66. It is the Buyer's responsibility to ensure that all goods specified in the quotation conform to all relevant performance requirements.
67. The Buyer shall be responsible for ensuring that the goods are installed or fitted and commissioned in accordance with the recommendations of the Seller and manufacturer, and that the goods are used for the purpose for which they are designed and that any design limitations are complied with.
68. If the Buyer is not the end-user of the goods, the Buyer shall be responsible for drawing to the attention of the end-user all instructions, technical literature and other information provided by the Seller.
69. The Seller shall be under no liability in respect of any defect arising from fair wear or tear, wilful damage, negligence and normal working conditions, failure to follow the Seller's instructions, mis-use or alteration or repair of the goods without the Seller's approval.
70. Subject as expressly provided these conditions and except where the goods are sold under consumer sale (as defined by The Sales of Goods Act 1979) all warranties conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law.
71. Any claim by the Buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification (whether or not delivery is refused by the Buyer) be notified to the Seller within seven working days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the goods had been delivered in accordance with the contract.
72. If any defect of workmanship or material in the goods supplied is reported to the Seller within one year from the date of delivery or within such period during which the goods are covered by any warranty, guarantee or indemnity obtained by the Seller from the manufacturer thereof, whichever shall be the shorter period, and the defective part of the goods in question returned to the Seller at the Buyer's risk and expense immediately upon discovery of such defect, the Seller will at its own cost and its own option arrange for the replacement or repair of the defective part.
73. All warranties are valid only when the equipment supplied are installed and used within the conditions and operational specifications as defined at the time of quotation and as defined by the manufacturer.
74. The Buyer and the Seller agree that the upper limit of liability of the Seller for defects in or otherwise relating to the goods or any part thereof shall be the amount of the price which has actually been received by the Seller for such goods not including all applicable taxes and related delivery costs.
75. The Buyer acknowledges and agrees that liability insurance is available to cover the Buyer and/or the end-user against liability to third parties including in connection with the installation, operation, maintenance or application of the goods.
76. Consequently the Buyer undertakes to keep the Seller fully and effectually indemnified at all times against all and any actions, claim, costs and expenses which the Seller may suffer or incur, which relate in any way to the goods, except only for the liability of the Seller for death or personal injury caused by the Seller's own negligence or that of the Seller's employees acting in the course of their employment.
77. Except in respect of death or injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation or any implied warranty condition or other term or any duty of common law or under the express terms of the contract for any consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever and (whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with they supply of the goods or their use or re-sale by the Buyer except as expressly provided in these conditions.
78. The Seller shall not be liable to the Buyer 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 Seller's obligations in relation to the goods if the delay or failure was due to any cause beyond the Seller's reasonable control.
79. The Seller carries out such tests as it considers necessary before delivery.
80. If the Buyer requires to carry out special tests to be carried out before delivery, and if the Seller so agrees or conducts such tests, the Seller may charge the Buyer for the time involved and any relative expenses.
81. If the Buyer carried out any tests after delivery, no claim may be made which is based upon the results of such test(s) unless the Seller shall have been given seven clear days notice of such test(s) and every reasonable opportunity of attending, and unless such charges as are referred to in clause 80 have been paid.
82. The Buyer shall be responsible for providing, and/or for any loss of or damage to, any material used for the purpose of tests which it requires to be carried out, as well as for any loss of or damage to the goods themselves in the course of such test.
Insolvency of the buyer
83. This clause applies if: -
84. The Buyer make any voluntary arrangements with creditors or becomes subject to an administration order or (being an individual firm) becomes bankrupt or (being a company) goes into liquidation (other wise that for purposes or amalgamation or reconstruction); or
85. An encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
86. The Buyer ceases or threatens to cease to carry on in business; or
87. The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
88. If this Clause applies then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or to suspend any further deliveries under the contract without any liability to the Buyer and if the goods have been delivered but not paid for the full price of the goods shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Patents, Trademarks, Registered Designs and Copyright
89. Provided that all goods are sold to the Buyer and all parts thereof shall been used only in a manner or for a purpose reasonably to be inferred by the Seller from the nature of the goods or disclosed to the Seller in writing prior to the making of the contract if any claim or action is made or brought against the Buyer in respect of the infringement of any Patent Trade Mark or Registered Design arising from the manufacture or sale by the Seller of the goods the Buyer shall forthwith give notice to the Seller of such claim or action and the Seller shall be at liberty at its own expense but with the Buyer's assistance if required and in the name of the Buyer contest such claim or action or conduct any negotiations for the settlement thereof. The Buyer shall not make any admission which might be prejudicial to any such negotiations or litigation.
90. Subject to the proviso contained in Clause 89 hereof the Seller shall indemnify the Buyer in respect of any such claim or action mentioned therein.
91. The Buyer shall indemnify the Seller against all claims and actions made or brought against the Seller for infringement of any Patent Trade Mark or Registered Design where the goods are manufactured or supplied or packaged to the Buyer's design and/or specifications.
92. Any invention disclosure or information made or received or acquired by the Seller in the performance of any order shall remain its property.
93. .No trademarks, trade name or indicia of patent rights shall be defaced or removed from goods supplied by the Seller nor shall the goods be advertised or used at any show display or exhibition without the Seller's previous written consent.
94. All drawings and technical documents by either of the parties to the other party remain the property of the delivery party and the receiving party may not improperly use them reproduce them or bring them to the knowledge of a third party.
95. The Buyer shall indemnify the Seller against all damages penalties costs and expenses to which the Seller may become liable as a result of any work done in accordance with the Buyer's requirements under the contract involving infringement or alleged infringement of any patent copyright or registered design.
96. The Seller shall be under no liability if it shall be unable to carry out any provision of the contract for any reason beyond its control including (without limiting the foregoing), act of God, legislation, war or threat of war, fire or accident, explosion, sabotage, insurrection, civil disturbance flood, tempest, drought, failure of power supply, lock-out, strike or any other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract.
97. If due to such events or circumstances the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.
98. The Seller may at its sole discretion accept or reject the cancellation of any order once such an order has been placed by the Buyer.
99. In the event of a cancellation being accepted by the Seller: -
100. All goods delivered pursuant to the cancelled order must be returned in unused re-saleable condition at the Buyer's expense within four days from the date on which the Seller accepted the cancellation.
101. Any goods that do not comply with the requirements of Clause 99 must be collected by the Buyer from the Seller's premises within four days of the Seller despatching notice to this effect to the Buyer's last known place of business. In default the Buyer is deemed to have failed to accept the delivery.
102. The Buyer will be liable to a reasonable handling charge payable to the Seller in respect of the cancelled order.
103. The Buyer will be liable at the Seller's discretion to a charge in respect of the work done, goods and materials obtained and used and applicable taxes pursuant to the cancelled order prior to the date on which the Seller accepts such cancellation.
104. If any provision (or part thereof) in these conditions of sale is found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such provision (or part thereof) shall not effect any other provision or the remainder of the partly invalid, ineffective or unenforceable provision.
105. All provisions (or part thereof) not affected by such invalidity, ineffectiveness or unenforceability as referred to in Clause 104 shall remain in full force and effect.
106. Failure of the Seller to enforce at any time or for any period of any time any of the terms herein contained shall not operate as a waiver of such terms or of any rights contained herein.
107. The Seller shall at all times be entitled to enforce each and every term contained herein.
108. The Buyer may not assign any contract made or rights arising hereunder in whole or in part without the Seller's prior written consent.
109. Notwithstanding that any item of goods have at any time been shown to the Buyer this contract does not constitute a sale by sample.
110. The Seller may modify without notice; existing designs and specifications from time to time as it may in its 'sole discretion considered expedient'.
111. Any notice required to be given by either party to the other under these conditions shall be in writing and addressed to that party at its registered office or principle place of business or such other address as may at the relevant time have been notified pursuant to the provisions of the party giving notice.
112.The laws of England shall govern this contract and each party hereby submits to the non-exclusive jurisdiction of the English Courts.
PENTA PRECISION ENGINEERING LIMITED, TERMS AND CONDITIONS OF PURCHASE
Basis of the sale
1. No variation to these conditions shall be binding unless agreed in writing between the authorised
representatives of the Buyer Penta Precision Eng. Limited whose registered office is at Wellesley House,
204 London Road, Waterlooville, Hampshire, PO7 7AN (the "BUYER") and the Seller which
term shall mean the person, firm or company selling the goods.
2. In placing this order the Buyer relies on the representations advice and recommendations made to
it by the Seller and its representatives concerning the goods ordered (the "GOODS").
Orders and specifications
3. The quantity, quality, description of and any specification for the goods shall be set out in the order.
4. All correspondence must quote the Buyer's order number.
5. Receipt of all orders must be acknowledged in writing to Penta Precision Eng. Limited at Aspen House,
Airport Service Road, Portsmouth, Hampshire, PO3 5RA.
6. Invoices must be sent to Penta Precision Eng. Limited, Aspen House, Airport Service Road,
Portsmouth, Hampshire, PO3 5RA.
7. Advice and despatch notes must be sent to Penta Precision Eng. Limited, Aspen House, Airport Service
Road, Portsmouth, Hampshire, PO3 5RA.
8. Statements must be sent to Penta Precision Eng. Limited, Aspen House, Airport Service
Road, Portsmouth, Hampshire, PO3 5RA.
9. All invoices and statements must show separately the VAT rate and the amount of VAT charged
and the Seller's VAT registration number.
10. The Buyer can cancel this order at any time by giving written notice to the Seller. If the Buyer
exercises this right of cancellation it is to pay a reasonable price for any work already completed but
will otherwise be free from liability.
Price of goods
11. All prices are fixed.
12. All goods must be properly packaged to survive transit to their destination and to resist pilferage,
distortion, corrosion or contamination. All goods must be clearly and legibly labelled and addressed.
13. Payment by the Buyer in accordance with the agreed payment terms does not constitute any admission
by the Buyer as to the performance by the Seller of its obligations.
14. The Seller agrees to deliver and unload the goods to the point of delivery given to the Seller by the
Buyer not later than the date of delivery stated by the Buyer. Time is of the essence of the contract,
15. The Seller recognises that late delivery may cause the Buyer consequential loss, such as inability on
the part of the Buyer to meet other contractual commitments.
16. The Buyer shall not be deemed to have accepted goods until it has had a reasonable period to examine
Risk and Property
17. The Property and Risk in the goods shall pass to the Buyer on delivery but without prejudice to any right
18. If delivery is delayed by some cause totally outside the control of the Seller, then he must give written
notice of this within seven days after the cause of the delay arises and the Buyer may then (but without
prejudice to its other rights) allow extra time for the delivery as is reasonable in the circumstances.
Warranties and Indemnity
19. The goods must comply in all respects with the contract description and with any statements or
undertakings made by the Seller or its servants or agents before the giving of the order and with all
legal requirements applying to them. The Seller agrees that all goods and services supplied by him
shall be of first class quality and recognises that the Buyer has placed the order relying upon the
skill and expertise of the Seller and any statements and representations made by him. If the goods
(or any of them) supplied are defective on delivery then the Buyer may call upon the Seller (but
without prejudice to the Buyer's other rights) to rectify the defects or (at the Buyer's option) to
replace the goods, in any case at the Seller's expense. All the obligations in these
conditions apply to any rectified or replacement goods as well as to the original goods.
20. Where the Buyer purchases goods from the Seller o