1.1 These terms apply to any and all trading relationships between Precision Microdrives Limited ("PMD") and any person or company purchasing or otherwise acquiring goods and / or services from it ("Buyer") and shall cover all services, goods and any part or instalment to be supplied in accordance with these terms ("Goods").
1.2 These terms apply to the exclusion of any other terms and conditions, including Buyer's own standard terms and shall not be varied unless agreed in writing by the authorised representatives of Buyer and PMD. The earlier of acceptance of the offer, order or Goods to which these terms relate shall create a binding contract ("Contract").
2.1 Buyer shall be responsible to PMD for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by Buyer, and for giving PMD any necessary information relating to the Goods within a sufficient time to enable PMD to deliver the Goods by the due date.
2.2 The quantity, quality and description of the Goods shall be as set out in PMD's quotation accepted by Buyer or Buyer's order (if accepted by PMD). All drawings, dimensions and specifications shall be approximate and not form part of the Contract.
2.3 PMD reserves the right to make changes to the specification of the Goods as are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to PMD's specification, which do not materially affect their quality or performance.
2.4 No order which has been accepted by PMD may be cancelled by Buyer except with the agreement in writing of PMD and on terms that Buyer shall indemnify PMD in full against all losses, costs, damages, charges and expenses incurred by PMD as a result of cancellation.
3.1 The price of the Goods shall be PMD's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in PMD's (or its supplier's) published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only.
3.2 Except as agreed otherwise in writing, all prices are quoted ex-works and are exclusive of delivery, insurance, VAT and any special packaging, which Buyer shall be additionally liable to pay to PMD.
3.3 PMD shall be entitled to increase its charges in accordance with its then prevailing rates in the event of unforeseen and uncontrollable increases in the cost of labour, materials or sub contracted services or as a result of any other cause beyond the reasonable control of PMD or if Buyer requires additional goods or services or any variations to the Goods.
4.1 Buyer shall pay the price of the Goods in full without set-off or deductions within 7 days of the date of PMD's invoice (unless agreed or specified otherwise in writing by PMD).
4.2 If Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to PMD, PMD shall be entitled to cancel the Contract (or part thereof) or suspend any further deliveries to Buyer; charge Buyer interest at the rate of four (4) per cent per annum above Bank of England base rate from time to time, until payment in full is made; and / or enter Buyer's premises in order to remove Goods to which such payment relates.
5.1 Risk of damage to or loss of the Goods shall pass to Buyer at the time of delivery or, if Buyer wrongfully fails to take delivery of the Goods, the time when PMD has tendered delivery of the Goods. Buyer shall insure the Goods from the date of delivery until title has passed to it.
5.2 Until the purchase price of the Goods comprised in this Contract or any other contract between PMD and Buyer and all other sums whatsoever which are or shall become outstanding from Buyer to PMD shall have been paid or satisfied in full (and if by cheque, then only upon clearance): (a) title to the Goods remains vested in PMD (notwithstanding the delivery of the same and the passing of the risk therein); (b) the Buyer shall store the Goods in such a way that they can be readily Identified as being PMD's property; (c) the Buyer may sell the Goods in the normal course of its business and may pass good title to its customer being a bona fide purchaser for value without notice of PMD's rights PROVIDED THAT PMD shall (until such time as all sums due to PMD are paid) be immediately entitled following sale to all proceeds of such sale which the Buyer shall accordingly hold as fiduciary and Buyer shall account for such proceeds on demand or claim directly against the Buyer's customer for any purchase monies unpaid by such customer.
5.3 Upon determination of the Buyer's power of sale PMD shall be entitled by Itself its servants or agents to enter upon any of the Buyer's premises for the purpose of removing and repossessing such Goods or their proceeds of sale and PMD shall be entitled to claim from the Buyer the costs and expenses incurred by PMD in and ancillary to the process of such removal and repossession.
5.4 Until title in the Goods has passed to the Buyer, the Buyer shall not purport to be the owner of the Goods and shall not show the Goods as stock in the Buyer's accounts.
5.5 Nothing in these terms shall: (a) entitle the Buyer to return the Goods or to delay payment thereof; (b)constitute or be deemed to have constituted the Buyer as PMD's agent; or (c) render PMD liable to any third party for any unauthorised representation or warranty made or given by the Buyer to such third party in relation to the Goods; or (d) prevent PMD from maintaining an action for the price notwithstanding that the property in the Goods may not have passed to the buyer.
5.6 PMD retains a general lien on any of the Buyer's equipment or materials in its possession for any unpaid balance the Buyer may owe to PMD. PMD shall be entitled to sell such equipment or materials in the event that payment is not made in full within 28 days of notice given to the Buyer by PMD of its exercise of the lien. The proceeds of sale may be taken by PMD for reimbursement of the expense of exercise of the lien and the sale, and payment of the said balance, and PMD shall account for any surplus.
6.1 Any dates quoted for delivery of the Goods are approximate only and PMD shall not be liable for any delay in delivery of the Goods howsoever caused.
6.2 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure to deliver any instalment in accordance with these terms or any claim by Buyer in respect of any instalment shall not entitle Buyer to treat the Contract as a whole as repudiated.
7.1 PMD shall use all reasonable efforts to pass on the benefit of any manufacturer's warranty or guarantee and Buyer agrees and undertakes to proceed under such manufacturer's warranty or guarantee in the event that it is in any way dissatisfied with the Goods and such dissatisfaction is not due to the default of PMD. In the event that such dissatisfaction is due to the default of PMD, it shall free of charge (at its sole option) either repair, replace or provide a full or partial refund or credit note to a maximum of the value of sums already paid in respect of defective Goods where the defects appear under proper use within thirty (30) days from the date of delivery if such defects in PMD's reasonable opinion arise through PMD's faulty design, workmanship or materials. Defects will not be regarded as having arisen solely from PMD's faulty design, workmanship or materials where such defects arise: (a) from any drawing, design or specification supplied by the Buyer; (b) from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow PMD's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without PMD's approval; or (c) in parts, materials, or equipment which have not been manufactured or designed by PMD but have been purchased at the Buyer's request by PMD from their designer and manufacturer or from some other third party.
7.2 Subject to clause 7.4 below in no circumstances shall PMD be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise whatever the cause thereof (i) for any loss of profit, business, contracts, revenue, or anticipated savings, or (ii) for any special indirect or consequential damage of any nature whatsoever and PMD's liability to Buyer for direct loss shall be limited only to the price of the Goods or if PMD fails to deliver the Goods for any reason other than any cause beyond its reasonable control or Buyer's fault and PMD is therefore liable, PMD's liability shall be limited to it delivering or redelivering the Goods. PMD's liability hereunder shall be to the exclusion of all other liability to the Buyer whether contractual, tortious or otherwise for defects in the Goods or for any loss or damage to or caused by the Goods, and subject to clause 7.4 below all other conditions, warranties, stipulations or other statements whatsoever concerning the Goods, whether express or implied, by statute, at common law or otherwise howsoever, are hereby exclude.
7.3 When representations, instructions or advice are given or received orally by PMD, it shall have no liability to Buyer for any misunderstanding or misrepresentation which may arise in relation thereto except where such is fraudulent or reckless.
7.4 Nothing in these terms shall operate or be construed to operate so as to exclude or restrict the liability of PMD for death or personal injury caused by reason of the negligence of PMD or of its servants, employees or agents.
7.5 Buyer agrees, acknowledges and accepts that PMD may use third parties to manufacture, produce or deliver the Goods and that PMD shall have no liability whatsoever in relation thereto subject to PMD exercising reasonable care in selecting such third party, where it does in fact do so.
7.6 The Goods are not designed, authorised or warranted to be suitable for use in medical, military, air craft, space or life support equipment nor in any application used on or within the person, nor in applications where failure or malfunction of the Goods can reasonably or foreseeably be expected to result in a personal injury, death or severe property or environmental damage. Inclusion and /or use of the Goods in such equipment or applications is not permitted and for Buyer's own risk. Buyer agrees to fully indemnify PMD for any costs, liabilities, losses or damages resulting from such inclusion or use. Buyer further agrees to obtain such safety certificates and proofs of compliance with all relevant safety standards.
7.7 PMD will not be liable in any amount for failure to perform any obligation under this Contract if such failure is caused by the occurrence of any unforeseen contingency beyond its reasonable control including without limitation fire, flood, war or act of God.
8.1 PMD shall be entitled to immediately restrict, suspend or terminate this Contract upon Buyer's breach of this Contract including without limitation the non-payment of any sums as and when they fall due.
9.1 Nothing in these terms shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
9.2 All personal data relating to Buyer collected by PMD from which PMD can identify Buyer may be recorded electronically and used in accordance with the Data Protection Act 1998 for purposes of identification, billing and marketing and to notify Buyer of events, promotions or activities.
9.3 All copyright, design right and like rights in materials prepared or created by PMD shall belong to and remain the property of PMD and Buyer shall not reproduce any part thereof for any purpose other than that for which they were furnished, or do any other act inconsistent with PMD's rights.
9.4 PMD reserves the right to sub contract the fulfilment of the Contract (including any installation) or any part thereof.
9.5 No waiver by PMD of any breach of the Contract by Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.6 Any notice to be given by either party to the other under these terms shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
9.7 If any provision of these terms is held to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and the remainder of the provision in question shall not be affected thereby.
9.8 A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
9.9 No representation made by PMD or its employees or agents shall be binding unless confirmed in writing and to Buyer as to the application or use of the Goods which is not confirmed in writing by PMD shall be followed by Buyer entirely at its own risk.
9.10 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by PMD shall be subject to correction without any liability on the part of PMD.
9.11 All Fees and prices quoted shall be in pounds sterling and are exclusive of VAT which shall be payable in addition as stated on the relevant invoice.
9.12 The Contract shall be governed by English law and the parties shall submit to the exclusive jurisdiction of the English courts.