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The following definitions and rules of interpretation apply in these
Precision Moulded Products (Essex) Limited, a company incorporated in England and Wales with company number 01342732 and whose registered office is located at Riclyn House, Flitch Industrial Estate, Great Dunmow, Essex, CM6 1XJ;
these terms and conditions as amended from time to time in accordance with clause 25.4;
the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with the Conditions;
the person or firm who purchases the Goods and/or Services from the Company;
the goods (or any part of them) set out in the Order;
the Customer’s order for the supply Goods and/or Services, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Company’s quotation, or overleaf as the case may be;
the services supplied by the Company as set out in the Order; and
the specification of any Goods and/or Services, as set out in the Order.
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
GENERAL FORMATION OF CONTRACT
All Orders and Contracts for the supply of Goods and Services shall be subject to these Conditions to the exclusion of all terms contained in, deduced with, or endorsed on the Customer's purchase order, confirmation of order, specification or other document issued by the Customer or which are implied by law, trade custom, practice or course of dealing.
THE CUSTOMER'S ATTENTION IS DRAWN PARTICULARLY TO CLAUSES 14.2 TO 14.5 BELOW
Each Order or acceptance of a quotation by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions.
No Order placed by the Customer or acceptance by the Customer of the Company’s quotation shall be deemed to be accepted by the Company until a written acknowledgement of Order is issued by the Company or (if earlier) the Company delivers the Goods and/or Services to the Customer, at which point and on which
date the Contract shall come into existence.
All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
All quotations are based on current rates for labour, materials and overheads. Quotations shall be valid for 30 days from the date upon which they were given, after which period they are subject to confirmation.
The Customer agrees to indemnify the Company against all claims for damages, costs, expenses or losses (including 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 against all liability in respect of assistance with component and tooling design and specifications provided to the Customer by the Company.
Where the Company advises the Customer on matters of component and tooling design and specification the Customer remains the design authority and shall satisfy itself that such designs and specifications will be fit for the Customer's intended purpose whether or not the intended purpose and
requirements were communicated to the Company.
Intellectual property rights in any component, tooling or moulding design carried out by the Company on the instruction of the Customer, whether or not to the Customer's specification, shall vest in the Company until payment for all sums of whatever nature due to the Company from the Customer has been made in full in cleared funds, whereupon the intellectual property rights shall pass to the Customer.
The Company reserves the right to amend any Specification if required by any applicable statutory or regulatory requirement, and the Company shall notify the Customer in any such event.
CUSTOMER'S GOODS AND TOOLING
Subject to clause 14.4 the Company shall not be responsible for any loss or damage to the Customer's goods and tooling, however, caused (including fire, explosion, accident, negligence, error, defective workmanship and any acts or omissions etc.) whether or not caused in fulfilment of the Contract.
Whilst in the Company's possession or that of a sub-contractor or in transit, all Customer's goods and tooling are all at the Customer's risk in all respects.
PATENTS AND DESIGN OF THE GOODS
The Customer shall indemnify the Company against any claims for damages, costs, expenses or losses (including 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 against all liability in respect of any infringement of patent right, registered design right, copyright or other third party industrial intellectual property rights resulting from the Company's compliance with the Customer's instructions expressed or implied.
A Customer supplying drawings, designs, artwork or data files warrants that they are entitled to the benefit of those designs etc.
All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any description or illustration contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of the Contract and this is not a sale by sample.
CUSTOMER'S FREE ISSUE RAW MATERIAL
When supplying the Goods, the Company will not be responsible for replacement of rejected parts made using Customer's materials unless the Company has specifically so agreed in writing in advance.
SUPPLY OF SERVICES
The Company shall supply the Services to the Customer in accordance with the Specification in all material respects.
The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Contract but any such dates shall be estimates only and time shall not be of the essence for the performance of theServices.
The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
The price of the Goods and/or Services shall be the price set out in the Order.
The Company may, by giving notice to the Customer at any time before delivery, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or
Services that is due to:
any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or Services to be supplied, or the Specification; or
any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
Payment is due 30 days from the end of the month in which the invoice is dated unless otherwise agreed in writing. All prices quoted and invoices are strictly net of VAT and other taxes or levies unless otherwise stated.
The Company shall be entitled to charge interest on any sums not so paid. Such interest shall be calculated on a day to day basis on the amount outstanding from the due date of payment at a rate of 4% per annum in excess of the highest rate at which Barclays plc base lending rate stood at any time within which the debt remained unpaid.
The Company shall be entitled to charge any costs involved in debt collection of overdue amounts.
The Customer shall not be entitled to withhold payment of any sums due to the Company by reason of any disputed claim of the Customer for defective Goods or alleged breach of Contract by the Company unless such claims have been notified to the Company pursuant to clause 13 of these Conditions.
No deductions shall be made by the Customer by way of any set off or counter claim however arising.
Time for payment shall be of the essence.
The Company sells ex-works; the delivery and packing are to the Customer's individual requirements and will be charged accordingly as part of the Contract price.
Delivery terms are quoted subject to confirmation after receipt of Order and are subject to raw material supply.
Whilst the Company will make reasonable efforts to comply with the quoted rate or time of delivery, time of deliveries is not of the essence in this Contract and the Company shall not be liable for any penalty, loss, injury, damage or expense directly or indirectly consequent upon any delay or any failure in delivery or performance by the company or its agents or servants from and cause whatsoever nor shall such delay entitle the Customer to cancel any Order, refuse to accept or repudiate any Contract for work to be done.
Unless otherwise agreed in writing by the Company, and subject to the provisions of clause 11 below, delivery of the Goods shall take place at the Company's place of business.
10.5 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Customer;
(b) the Goods shall be deemed to have been delivered;
(c) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance)
The liability for loss or damage in transit outside the UK is as per the terms of the Contract using 'incoterms 2020' as the standardised interpretation of the expression for CIF contracts or FOB contracts.
If events beyond the reasonable control of either party (including without limitation to the generality of the foregoing words, force majeure, war, act of terrorism, riot, strikes, lockouts, act of God, storm, fire, earthquake, explosion, pandemic, epidemic, flood, trade disputes, shortage of raw materials or supplier and Government action) prevent or hinder the provision of Services or the manufacture, delivery or acceptance of the Goods, delivery or service may be suspended in whole or in part and the affected party shall immediately give notice in writing thereof to the other party. Suspension of delivery or service shall continue so long as manufacture, delivery or acceptance of Goods or provisions or the Services is so prevented or hindered, and the original time for delivery or service shall be extended by the period of any such suspension. If such suspension continues for longer than 90 days in respect of any Goods or Services either party shall have the option to terminate the Contract with regard to such Goods or Services. Neither party shall be liable for any loss caused to the other party by such suspension or termination except that where the Company has incurred expenditure due to the special nature of the Customer's order the Company shall be reimbursed such expenditure.
Any claims of whatever nature arising out of this Contract (including the warranty contained in clause
14 below) shall be waived by the Customer unless:
(a) it notifies both the Company and the carrier (if any).
– in the event of damage – within 3 Working Days of delivery.
– in the event of part or whole non-delivery – within 10 Working Days of Delivery Note date.
– in the event of Goods to be rejected – within 10 Working Days of Delivery Note date.
(b) ceases to make any further use of such Goods after giving the notice referred to in (a) above.
WARRANTY AND LIMITATION OF LIABILITY
The Company warrants that on delivery the Goods shall be free from defective materials and faulty workmanship. All other warranties or conditions, statutory or otherwise, are specifically excluded to the extent allowed by law.
Subject to clauses 5.1, 10.3 and clause 14.1, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer
in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tedious act or omission including negligence arising under or in connection with the Contract.
All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company's negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation
Subject to condition 14.3 and condition 14.4:
(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
This clause shall survive termination of the Contract.
TITLE AND RISK
Subject to clause 10.4, until full payment has been received by the Company for all Goods or Services whatsoever supplied at any time by the Company to the Customer the following terms apply.
(a) property in the Goods shall remain in the Company;
(b) the Customer shall store the Goods in such a way that they can be readily identified as the property of the Company;
(c) if the Customer sells the Goods in the ordinary course of business the proceeds of the sale shall be the property of and held in trust for the Company in a separate account;
(d) the Customer shall not to destroy, deface or obscured identifying mark or packaging.
(e) if a Customer is in default for longer than 14 days in the payment of any sum whatsoever due to the Company or if any bill of exchange, cheque or other negotiable instrument drawn or accepted or endorsed by the Customer in favour of the Company is dishonoured on presentation for payment or if a receiver or administrator is appointed over any of the assets or the undertaking of the Customer or the Customer goes into voluntary liquidation otherwise than for the purpose of reconstruction or amalgamation or causes a meeting of or makes any arrangement or composition with creditors or commits any act of bankruptcy, the Customer shall place the Goods at the disposal of the Company who shall be entitled to enter upon the premises of the Customer for the purpose of removing such Goods from the premises. Where payment is made by cheque the Company shall not be deemed to have received payment until the cheque has been cleared.
The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where Goods are or may be stored in order to inspect them or, where a Customers right to possession has terminated, to recover them. Notwithstanding the foregoing, risk in the Goods shall pass to the Customer on delivery.
REPLACEMENT OF GOODS
The Company reserves the right to replace with sound goods any Goods found to be defective by reason of materials or workmanship.
RETURN OF GOODS
The Company reserves the right to refuse the return of Goods unless written notification of shortages or dispute is made by the Customer to the Company within ten Working Days of receipt by the Customer.
ORDERS AND SPECIFICATIONS
The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order including all applicable Specifications submitted by the Customer for giving the Company any necessary information relating to the Goods and/or Services within a sufficient time to enable the Company to perform
the Contract in accordance with its terms and for detailing any delivery instructions
The Company reserves the right to make any changes to the Customers Specification of the Goods and/or Services which are required to conform with any applicable safety or applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Goods or Services, and the Company shall notify the Customer in any such event.
The Customer shall co-operate in all matters relating to the supply of Goods and/or Services
Where changes are made to the Customer's Specification the Company shall notify the Customer who shall either provide a new specification or permit the Company to proceed with the manufacture of the Goods or the supply of Services in accordance with the Company's changes
No Order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including the cost of all labour and materials used) damages charges and expenses incurred by the Company as a result of cancellation.
The Company shall be deemed to have fulfilled the Contract if the Goods delivered are within a tolerance of 10 per cent above or below the quantity ordered.
The Company reserves the right to sub-contract any Order in whole or in part, and these terms shall apply notwithstanding that the Company may have sub-contracted.
CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008
Where any trade description or other indication or representation is applied to any Goods at the Customer's request the Customer warrants that the same will be true and accurate in all respects and that the supply or offer supply of any such Goods will not give rise to an offence by the Company under the Consumer
Protection From Unfair Trading Regulations 2008. The Customer shall keep the Company fully indemnified against breach of the foregoing warranty.
THE DATA PROTECTION
The following definitions apply in this clause 22:
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures:
as defined in the Data Protection Legislation.
Data Protection Legislation:
all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made there under) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
the law of the United Kingdom or a part of the United Kingdom. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 22 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Company is the Processor. Clause 22.7 sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of Personal Data and categories of Data Subject.
Without prejudice to the generality of clause 22.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Company and/or lawful collection of the Personal Data by the Company on behalf of the Customer for the duration and purposes of the Contract.
Without prejudice to the generality of clause 22.2, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under the Contract:
(a) process that Personal Data only on the documented written instructions of the Customer unless the Company is required by Domestic Law to otherwise process that Personal Data. Where the Company is relying on Domestic Law as the basis for processing Personal Data, the Company shall promptly notify the
Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Company from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
i.the Customer or the Company has provided appropriate safeguards in relation to the transfer;
ii.the Data Subject has enforceable rights and effective legal remedies;
iii.the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv.the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
v.assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) not transfer any notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of the Company, an instruction infringes the Data Protection Legislation.
The Customer does not consent to the Company appointing any third party processor of Personal Data under the Contract.
Processing by the Company:
(a) Scope: The provision of Goods and/or Services to the Customer by the Company;
(b) Nature: The provision of Goods and/or Services to the Customer by the Company
(c) Purpose of the processing: The fulfilment of the provision of Goods and/or Services to the Customer by the Company;
(d) Duration of the processing: the duration of the Contract;
(e) Types of Personal Data: name, email address, telephone number;
(f) Categories of Data Subject: Customer or person identified in the quotation or Order.
Either party may, at any time on not less than 30 days’ notice, revise this clause 22 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by
attachment to the Contract).
Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 23.1(a) to clause 23.1(d) or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for
On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt. In addition the Company reserves a general lien on any materials, patterns and any other property of the Customer in its possession for all monies due or accruing due from the Customer on any account until they are paid.
Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, 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.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next Working Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number or sent by email to the address specified in the Order.
Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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; or
(c) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 24.2 on a day that is not a public holiday in the place of receipt.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
A notice given under this Contract is not valid if sent by email.
The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 25.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 25.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 25.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Rights of Third Parties.
The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.