1.1. The following definitions apply to these Conditions:
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Buyer” means the legal entity that purchases the Goods from the Seller;
“Buyer Supplied Materials” means any materials which are supplied by the Buyer to the Seller for the performance of the Contract;
“Conditions” means these terms and conditions of sale;
“Contract” means the contract between the Seller and the Buyer for the purchase and sale of the Goods subject to these Conditions;
“Delivery Location” has the meaning given to it in clause 10.2;
“Goods” means the goods (including any instalment of the goods) described in the Order and which the Seller is to supply in accordance with these Conditions;
“Intellectual Property Rights” means any patent, trade mark, right in respect of logos and get-up, trade name, design, domain name, copyright, database right, utility model, other intellectual or industrial property right, in each case whether registered or unregistered and including any application for registration, and any right or forms of protection having equivalent or similar effect anywhere in the world including any such right which may now or in the future subsist;
“Know-how” means all information and know how, whether relating to inventions, improvements, technical information, data and documentation, methods, ideas, concepts, discovering techniques, specifications, components lists, and whether contained in specifications, instructions, laboratory notebooks, test reports, internal reports, memoranda or other documents;
“Order” means the Buyer’s order of the Goods submitted to the Seller;
“Price” means the price of the Goods set out in the Order, or, if no price is quoted, the price set out in the Seller's published price list in force as at the date of delivery; and
“Seller” means Progressive Technology Limited, a company registered in England and Wales with company number 07051006 and a registered office at Banks & Co, 1 Carnegie Road, Newbury, Berkshire, RG14 5DJ.
1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4. A reference to “writing” or “written” includes fax and email.
1.5. The Seller may amend these Conditions from time to time by giving notice in writing to the Buyer.
2. BASIS OF SALE
2.1. The Seller shall sell and the Buyer shall purchase the Goods subject to these Conditions in accordance with any Order submitted by the Buyer which is accepted by the Seller.
2.2. Any Order submitted to the Seller by the Buyer shall be accepted entirely at the discretion of the Seller.
2.3. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4. The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations, which are not so confirmed.
2.5. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods, which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.6. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.1. The Buyer shall be responsible for ensuring the accuracy of the terms of any Order and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with such terms.
3.2. The quantity, quality and description and any specification for the Goods shall be those set out in the Order.
3.3. The Seller reserves the right to make any changes to the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to either the Seller's or Buyer’s specification, which do not materially affect their quality or performance.
4.1. Where the Seller is required to submit proofs of the Goods (either as 3D models or digitally) to the Buyer for the Buyer's approval, the Buyer shall be entirely responsible for ensuring that such proofs are correct, accurate and meet the Buyer’s requirements before the Buyer approves such proofs.
4.2. Following approval of such proofs by the Buyer, the Seller shall have no liability to the Buyer for any errors or inaccuracies in the Goods, or any failure of the Goods to meet the Buyer’s requirements.
4.3. Once delivered, the Buyer shall examine the Goods promptly upon receipt. The Seller shall not be liable for any defects in quantity or quality of the Goods unless the Buyer gives written notice of the defect to the Seller in sufficient detail to enable the Seller to identify the defect within 30 days of Buyer’s receipt of the Goods.
5. SAFETY TESTING
5.1. The Buyer shall be responsible for informing the Seller of any specific safety requirements or features that may be applicable or required in connection with the Goods.
5.2. Unless otherwise agreed by the Seller in writing, the Buyer shall be responsible, at its own expense, for any safety testing that is required to meet any relevant regulations.
5.3. The Seller shall not be liable to the Buyer for any losses incurred by the Buyer or any third party resulting from the Buyer’s performance of, or failure to perform, any such safety testing responsibilities.
6. BUYER SUPPLIED MATERIALS
6.1. Where the Buyer provides Buyer Supplied Materials to the Seller, the Buyer must do so in accordance with any instructions of the Seller.
6.2. The Seller may reject any Buyer Supplied Materials if in the Seller’s opinion such Buyer Supplied Materials are unsuitable. If the Seller is required to reject any Buyer Supplied Materials, any additional costs incurred by the Seller in handling such Buyer Supplied Materials shall be payable by the Buyer.
6.3. The Seller accepts no liability or risk for any damage, loss or destruction caused to any Buyer Supplied Materials in the Seller’s possession.
6.4. Notwithstanding the Seller’s right not to accept an Order, the Buyer hereby agrees that it shall indemnify, keep indemnified and hold harmless the Seller in respect of any claims, costs, damages and expenses (including all legal and other professional costs and expenses) that the Seller may suffer or incur which arises out of or in connection with any proceedings or action against the Seller resulting from any Buyer Supplied Material.
7.1. The Seller may, by giving notice to the Buyer at any time before delivery, increase the Price to reflect any increase in the cost of the Goods that is due to:
7.1.1.any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.1.2.any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Order; or
7.1.3.any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
7.2. The Price is exclusive of amounts in respect of VAT, any similar sales tax or any tax that replaces such sales taxes and import duty, all of which the Buyer shall be liable to pay. The Buyer shall, on receipt of a valid invoice from the Seller, pay to the Seller any additional amounts in respect of such taxes or any other sums as are chargeable on a supply of the Goods.
7.3. Unless otherwise agreed, the Price is exclusive of insurance and carriage of the Goods which shall be paid by the Buyer.
7.4. The Buyer 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 Seller, the Buyer shall make those licences and consents available to the Seller prior to the relevant shipment.
7.5. If the Price increases after the date of the Order, the Seller shall provide notice to the Buyer of such increase. The Buyer shall have a period of 5 Business Days from the date of the Seller’s notice to respond to the Seller’s notice. If the Buyer does not accept the revised price, the Buyer may cancel the Contract. If the Buyer fails to respond to the Seller’s notice within 5 Business Days, the Buyer shall be deemed to have accepted the revised price and the Buyer shall be liable to pay for the Goods at the revised price.
8. TERMS OF PAYMENT
8.1. The Buyer shall pay the invoice in full and in cleared funds within 30 days after the end of the month in which it was sent. Payment shall be made to the bank account nominated in writing by the Seller. Time for payment is of the essence.
8.2. If the Buyer cancels any Order, the Buyer shall pay to the Seller the cost of the materials and work done by the Seller up to the point that the Order is cancelled.
8.3. If the Buyer fails to make payment on the due date then, without limiting any other right or remedy available to it, the Seller shall be entitled to cancel the Contract or suspend any further deliveries of the Goods in respect of the Order or any other orders made.
8.4. The Buyer shall make all payments due to the Seller under the Contract in full and without any set-off, counterclaim, deduction or withholding.
9. INTELLECTUAL PROPERTY
9.1. All Intellectual Property Rights and Know-how created or owned by a party shall remain owned by that party and, except for the licence set out in clause 9.2, nothing in this Contract shall transfer the ownership of, or grant any other interest in, any Intellectual Property Rights or Know-how of any party to the other party.
9.2. The Buyer hereby grants (and shall procure that its licensors grant) to the Seller a royalty free, non exclusive, non transferable (except in accordance with clause 17), irrevocable, worldwide licence to use, adapt, modify, and copy all Intellectual Property Rights, which are owned by the Buyer (or its licensors) as the Seller may reasonably require to provide the Goods.
9.3. In order to protect the Intellectual Property Rights and Know-how of the Seller, the Buyer warrants that it will not reverse engineer, disassemble, or otherwise attempt to derive the make-up of the Goods, from the Goods.
9.4. The Buyer hereby warrants to the Seller that any Buyer Supplied Materials and all information provided by the Buyer to the Seller under the Contract, including without limitation in the Order, shall not infringe the Intellectual Property Rights or other rights of any third party.
9.5. The Buyer shall indemnify and keep indemnified the Seller in full against any losses, claims, costs, damages and expenses (including all legal and other professional costs and expenses) incurred by the Seller resulting from a claim that the Buyer Supplied Materials, or any other information provided by the Buyer to the Seller in connection with the Contract infringe the Intellectual Property Rights of any third party.
10.1. The Seller shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Buyer and Seller reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and special storage instructions (if any).
10.2. The Seller shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”).
10.3. Costs of delivery to a Delivery Location shall be paid by the Buyer unless otherwise agreed.
10.4. Delivery is completed on the completion of unloading of the Goods at the Delivery Location if delivery has been agreed or once the Seller has notified the Buyer that the Goods are ready for collection at the Delivery Location.
10.5. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by an event outside of its control or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
10.6. If 20 Business Days after the day on which the Seller notified the Buyer that the Goods were ready for collection the Buyer has not arranged delivery of them, or the Buyer does not accept the Goods at the Delivery Location on the arranged date, the Seller may dispose of part or all of the Goods and the full Price will still be payable.
10.7. Without prejudice to the rights of the Seller under clause 10.6, if the Buyer fails to accept delivery of the Goods, the Seller has the right to charge the Buyer for any incidental costs it may incur, including but not limited to, costs incurred in connection with storing the Goods and the costs of transporting the Goods to the Buyer’s alternative delivery address.
11. TITLE AND RISK
11.1. The risk in the Goods shall pass to the Buyer on completion of delivery.
11.2. Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer 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.
11.3. Until title to the Goods has passed to the Buyer, the Buyer shall:
11.3.1. store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
11.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
11.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full Price from the date of delivery;
11.3.4. give the Seller such information relating to the Goods as the Seller may require from time to time; and
11.3.5. grant the Seller a licence to enter the Buyer’s premises to recover the Goods.
12. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by circumstances beyond the reasonable control of the party affected, including but not limited to, acts of God, fire, flood, war, riot, civil disturbance, government action, accident, labour disputes, shortages or inability to obtain material, weather conditions, environmental disasters, theft of equipment, transportation delays or default of Sellers or subcontractor.
13. SUSPENSION AND TERMINATION
13.1. This clause applies if the Buyer:
13.1.1. fails to pay any undisputed amount due under these Conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
13.1.2. commits a material breach of any other term of these Conditions which breach is irremediable or and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
13.1.3. repeatedly breaches any of the terms of these Conditions in such a manner as reasonably to justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
13.1.4. 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 but disregarding the references in that section to proving it to the court’s satisfaction;
13.1.5. 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;
13.1.6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Buyer;
13.1.7. 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 Buyer;
13.1.8. the holder of a qualifying floating charge over the assets of the Buyer has become entitled to appoint or has appointed an administrative receiver;
13.1.9. a person becomes entitled to appoint a receiver over the assets of the Buyer or a receiver is appointed over the assets of the Buyer;
13.1.10. a creditor or encumbrancer of the Buyer 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;
13.1.11. any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1.4 to clause 13.1.10 (inclusive);
13.1.12. the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
13.1.13. undergoes a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010).
13.2. If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract or any further deliveries it has under any other contracts it has with the Buyer, without any liability to the Buyer, and if the Goods have been delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and the Seller may enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
13.3. Notwithstanding any action taken by the Seller under this clause, the Buyer shall remain liable to pay for all Goods ordered.
14. EXCLUSION AND LIMITATION OF LIABILITY
14.1. Nothing in these Conditions limits or excludes the Seller’s liability for:
14.1.1. death or personal injury caused by the Seller’s negligence;
14.1.2. fraud or fraudulent misrepresentation; or
14.1.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
14.2. Subject to clause 14.1, the Seller will under no circumstances be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract for:
14.2.1. any loss of profits, sales, business, or revenue;
14.2.2. loss or corruption of data, information or software;
14.2.3. loss of business opportunity;
14.2.4. loss of anticipated savings;
14.2.5. loss of goodwill; or
14.2.6. any indirect or consequential loss.
14.3. The Buyer’s exclusive remedy for any defective Goods is expressly limited to the replacement of the defective Goods or, if replacement is not practicable, damages not exceeding the price of such defective Goods.
14.4. Subject to clause 14.1, 14.2 and 14.3, the Seller’s total liability to the Buyer in respect of all losses arising under or in connection with the Contract, will be limited, in respect of all claims (connected or unconnected) in any consecutive 12 month period, to 100% of the Price.
15.1. Except as expressly stated in these Conditions, the Seller does not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition, warranty or undertaking which might be implied or incorporated into these Conditions by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, the Seller will not be responsible for ensuring that the Goods are suitable for the Buyer’s purposes.
15.2. Subject to the conditions set out below, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship from the date of delivery until the end of 1 month, or until the Goods are used in any way, whichever is the earlier.
15.3. The above warranty is given by the Seller subject to the following conditions:
15.3.1. the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design, Buyer Supplied Materials, or specification supplied by the Buyer;
15.3.2. the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval;
15.3.3. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment; and
15.3.4. the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or the Seller so far as the Seller is reasonably able to pass on the benefit thereof to the Buyer.
15.4. Except as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
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.
17.1. The Seller 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.
17.2. The Buyer may not assign, transfer, mortgage, charge, subcontract, 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 Seller.
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 in writing and signed by the Seller.
19.1. The Contract constitutes the entire agreement, and supersedes any previous agreement, between the parties relating to the subject matter of the Contract.
19.2. Each party acknowledges that it has not relied on or been induced to enter the Contract by a representation, warranty or undertaking (whether contractual or otherwise) other than those expressly set out in the Contract.
19.3. Except as expressly provided in the Contract, any failure to exercise or delay in exercising (whether fully or at all) a right or remedy provided by the Contract or by law does not constitute a waiver of the right or remedy or a waiver of any other rights or remedies.
19.4. A notice under or in connection with the Contract:
19.4.1. must be in writing;
19.4.2. must be in the English language; and
19.4.3. must be delivered personally or first class post to the party due to receive the notice to the address specified in the Order.
19.5. A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
19.6. This Contract and all non-contractual obligations arising out of or in connection with it are governed by English law and subject to the exclusive jurisdiction of the English courts.