Contact usTerms and conditions for the sale of goods and services
The Customer's attention is particularly drawn to the provisions of clause 13.
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.
2.1 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.
3.1 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.
4.1 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.
5.1 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.
6.1 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.
7.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates confirmed by the Supplier in writing, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 Subject to clause 5.1 which applies equally to the Services, the Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order and (if submitted by the Customer) the Services Specification and Goods Specification are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to the Services;
8.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
8.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
8.1.6 keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation.
8.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
8.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9.1 The price for the Goods and Services shall be the price set out in the Order or such other amount as is agreed in writing by the Customer and the Supplier. The price of the Goods and Services is exclusive of all costs and charges of packaging, insurance, transport of the Goods and Services, which shall be paid by the Customer when it pays for the Goods and Services.
9.2 The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, or the Services to reflect any increase in the cost of the Goods or Services to the Supplier that is due to:
9.2.1 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
9.2.2 any machine waiting time or delays in manufacture causing production time to be extended due to conflicting, missing or incomplete information, documentation or specifications being provided by the Customer or any specifications provided by the Customer being changed;
9.2.3 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification;
9.2.4 any request by the Customer to change the delivery date(s), types of Services ordered, or the Services Specification; or
9.2.5 any delay caused by any instructions of the Customer in respect of the Goods or Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods or Services.
9.3 Save in respect of Orders which are the subject of Scheduled Deliveries or Call Off Deliveries, the price payable for the Goods and the Services shall, unless otherwise agreed in writing by the Supplier, be invoiced to the Customer and payable when the Order is place.
9.4 Where an Order is the subject of Scheduled Deliveries or Call Off Deliveries the Supplier shall invoice the Customer on delivery of each instalment of Goods and/or Services in respect of the Goods and/or Services delivered. All such invoices shall be payable within 30 days of the invoice date.
9.5 The Customer shall pay each invoice submitted by the Supplier:
9.5.1 in pounds sterling (and in the event payment is not made in pounds sterling the Customer bears the risk of exchange rate changes and shall be responsible for any costs incurred by the Supplier in respect of currency conversion and banking charges applicable to the payment method used and shall reimburse the Supplier for such amount on demand); and
9.5.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above The Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
10.1 If the Customer is located outside the United Kingdom, the Order may be subject to import duties and taxes which are applied when the delivery of the Goods reaches its destination. The Supplier has no control over these charges and cannot predict their amount. The Customer will be responsible for payment of any such import duties and taxes.
10.2 The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.
10.3 The Supplier accepts no liability or responsibility for any breach by the Customer of the provisions of this clause 10.
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
11.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
11.3 All Supplier Materials are the exclusive property of the Supplier.
11.4 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 Goods supplied or Services carried out which involve the Supplier carrying out Reverse Engineering at the request of the Customer including 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 Reverse Engineering. This clause 11.4 shall survive termination of the Contract.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 12 shall survive termination of the Contract.
13.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
13.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
13.1.2 fraud or fraudulent misrepresentation;
13.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
13.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
13.1.5 defective products under the Consumer Protection Act 1987.
13.2 Subject to clause 13.1:
13.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
13.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price payable by the Customer to the Supplier pursuant to the Contract.
13.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.4 This clause 13 shall survive termination of the Contract.
14.1 Without limiting its other rights or remedies the Supplier may terminate the contract by giving the customer not less than 1 months’ written notice.
14.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.2.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
14.2.2 the other party 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;
14.2.3 the other party 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;
14.2.4 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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
14.2.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
14.2.6 a creditor or encumbrancer of the other party 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 its assets and such attachment or process is not discharged within 14 days;
14.2.7 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 other party (being a company);
14.2.8 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
14.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
14.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2.2 to clause 14.2.9 (inclusive);
14.2.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
14.2.12 the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
14.2.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
14.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
14.4 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2.2 to clause 14.2.13, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
14.5 On termination of the Contract for any reason:
14.5.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
14.5.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
14.5.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
14.5.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Customer.
16.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
16.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
17.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier.
17.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 17.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
17.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
18.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
18.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.1 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.2 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
19.3 A person who is not a party to the Contract shall not have any rights to enforce its terms.
19.4 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
19.5 This agreement 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.
19.6 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Terms and conditions for the purchase of goods and/or services
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.
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 15.7.
Contract: the contract between the Penta and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
Penta Materials: has the meaning set out in clause 5.3.9.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Penta 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: Penta's order for the supply of Goods and/or Services, as set out in Penta's purchase order form, or in the Penta's written acceptance of the Supplier's quotation, as the case may be.
Penta: Penta Precision Eng. Limited registered in England and Wales with company number 03478011.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services agreed in writing by Penta and the Supplier.
Supplier: the person or firm from whom Penta purchases the Goods and/or Services.
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 references to a party includes its 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.
2.1 The Order constitutes an offer by Penta to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
2.2.1 the Supplier issuing written acceptance of the Order; or
2.2.2 any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3.1 The Supplier shall ensure that the Goods shall:
3.1.1 correspond with their description and any applicable Goods Specification;
3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Penta, expressly or by implication, and in this respect the Penta relies on the Supplier's skill and judgment;
3.1.3 where applicable, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
3.3 Penta shall have the right to attend the Supplier’s premises to inspect and test the Goods at any time before delivery upon giving not less than 48 hours notice to the Supplier.
3.4 If following such inspection or testing Penta considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, Penta shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract, and Penta shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.6 All correspondence between Penta and the Supplier must quote the relevant Order number.
4.1 The Supplier shall ensure that:
4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition without distortion, corrosion or contamination and be clearly and legibly labelled and addressed;
4.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.3 if the Supplier requires Penta to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
4.2.1 on the date specified in the Order or, if no such date is specified, then within 21 days of the date of the Order;
4.2.2 to Penta's registered office or such other location as is set out in the Order or as instructed by Penta before delivery (Delivery Location);
4.2.3 during Penta's normal hours of business on a Business Day, or as instructed by Penta.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 If the Supplier:
4.4.1 delivers less than 100 per cent of the quantity of Goods ordered, Penta may reject the Goods; or
4.4.2 delivers more than 105 per cent of the quantity of Goods ordered, Penta may at its sole discretion reject the excess Goods,
and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Penta accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.5 The Supplier shall not deliver the Goods in instalments without Penta's prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Penta to the remedies set out in clause 6.1.
4.6 Title and risk in the Goods shall pass to Penta on completion of delivery.
4.7 Penta shall not be deemed to have accepted any Product until it has had a reasonable time to inspect them following delivery, or, in the case of a latent defect in the Products, until a reasonable time after the latent defect has become apparent.
5.1 The Supplier shall from the date set out in the Order and for the duration of this Contract provide the Services to Penta in accordance with the terms of the Contract.
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by Penta.
5.3 In providing the Services, the Supplier shall:
5.3.1 co-operate with Penta in all matters relating to the Services, and comply with all instructions of Penta;
5.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
5.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with this Contract;
5.3.4 ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by Penta;
5.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
5.3.6 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Penta, will be free from defects in workmanship, installation and design;
5.3.7 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
5.3.8 observe all health and safety rules and regulations and any other security requirements that apply at any of Penta's premises;
5.3.9 hold all materials, equipment and tools, drawings, specifications, patterns and data supplied by Penta to the Supplier (Penta Materials) in safe custody at its own risk, maintain Penta Materials in good condition until returned to Penta, and not dispose or use the Penta Materials other than in accordance with Penta's written instructions or authorisation;
5.3.10 not do or omit to do anything which may cause Penta to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that Penta may rely or act on the Services; and
6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, Penta shall, without limiting its other rights or remedies, have one or more of the following rights:
6.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
6.1.2 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
6.1.3 to recover from the Supplier any costs incurred by Penta in obtaining substitute goods and/or services from a third party;
6.1.4 where Penta has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and
6.1.5 to claim damages for any additional costs, loss or expenses incurred by Penta which are in any way attributable to the Supplier's failure to meet such dates. In this respect the Supplier acknowledges that late delivery may cause Penta consequential loss, such as inability on the part of Penta to meet other contractual requirements.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting its other rights or remedies, Penta shall have one or more of the following rights, whether or not it has accepted the Goods:
6.2.1 to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;
6.2.2 to terminate the Contract with immediate effect by giving written notice to the Supplier;
6.2.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
6.2.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
6.2.5 to recover from the Supplier any expenditure incurred by Penta in obtaining substitute goods from a third party; and
6.2.6 to claim damages for any additional costs, loss or expenses incurred by the Penta arising from the Supplier's failure to supply Goods in accordance with clause 3.1.
6.3 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
6.4 Penta's rights under this Contract are in addition to its rights and remedies implied by statute and common law.
7.1 The price for the Goods:
7.1.1 shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier's published price list in force at the Commencement Date; and
7.1.2 shall be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by Penta. No extra charges shall be effective unless agreed in writing and signed by Penta.
7.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by Penta, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
7.3 In respect of Goods, the Supplier shall invoice Penta on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice Penta on completion of the Services. Each invoice shall be sent to Penta’s main trading address and shall include such supporting information required by Penta to verify the accuracy of the invoice, including but not limited to the relevant purchase order number and shall separately specify any VAT due.
7.4 In consideration of the supply of Goods and/or Services by the Supplier, Penta shall pay the invoiced amounts within 90 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
7.5 All amounts payable by Penta under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to Penta, Penta shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
7.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments that the defaulting party disputes in good faith.
7.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow Penta to inspect such records at all reasonable times on request.
7.8 Penta may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to Penta against any liability of Penta to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
8.1 In respect of the Goods and any goods that are transferred to Penta as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to Penta, it will have full and unrestricted rights to sell and transfer all such items to Penta.
8.2 The Supplier assigns to Penta, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
8.3 The Supplier shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
8.4 The Supplier shall, promptly at Penta's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as Penta may from time to time require for the purpose of securing for the Penta the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to Penta in accordance with clause 8.2.
8.5 All Penta Materials are the exclusive property of Penta.
9.1 The Supplier shall keep Penta indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered incurred by the Penta as a result of or in connection with:
9.1.1 any claim made against Penta for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
9.1.2 any claim made against Penta by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
9.1.3 any claim made against Penta by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
9.2 This clause 9 shall survive termination of the Contract.
During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on Penta's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
11.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
11.2 The Penta Materials are the confidential information of Penta and are subject to this clause 11.
11.3 This clause 11 shall survive termination of the Contract.
12.1 Without limiting its other rights or remedies, Penta may terminate the Contract:
12.1.1 in respect of the supply of Services, by giving the Supplier 7 days’ written notice; and
12.1.2 in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Contract. Penta shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
12.2 In any of the circumstances in these Conditions in which a party may terminate the Contract, where both Goods and Services are supplied, that party may terminate the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
12.3 Without limiting its other rights or remedies, Penta may terminate the Contract with immediate effect by giving written notice to the Supplier if:
12.3.1 the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing to do so;
12.3.2 the Supplier repeatedly breaches any of the terms of the 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 the Contract;
12.3.3 the Supplier 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;
12.3.4 the Supplier 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;
12.3.5 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 Supplier (being a company);
12.3.6 the Supplier (being an individual) is the subject of a bankruptcy petition or order;
12.3.7 a creditor or encumbrancer of the Supplier 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 its assets and such attachment or process is not discharged within 14 days;
12.3.8 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 Supplier (being a company);
12.3.9 the holder of a floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.3.10 a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
12.3.11 any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.3.3 to clause 12.3.10 (inclusive);
12.3.12 the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business;
12.3.13 the Supplier’s financial position deteriorates to such an extent that in Penta’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
12.3.14 the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
12.5 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
On termination of the Contract for any reason, the Supplier shall immediately deliver to the Penta all Deliverables whether or not then complete, and return all Penta Materials. If the Supplier fails to do so, then Penta may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
14.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from an event, circumstances or cause beyond its reasonable control (Force Majeure Event).
14.2 The Supplier shall notify Penta as soon as possible and in any event within 7 days of the occurrence of a Force Majeure Event. The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
14.3 If a Force Majeure Event prevents, hinders or delays the Supplier's performance of its obligations for a continuous period of more than 14 Business Days, Penta may terminate the Contract immediately by giving written notice to the Supplier.
15.1 Assignment and other dealings.
15.1.1 Penta may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.1.2 The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Penta.
15.2 Notices.
15.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier.
15.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
15.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
15.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
15.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Penta.
15.8 Governing law. 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.
15.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).