Terms & Conditions

1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time.

Confidential Information: all trade secrets, know-how, data, specifications, drawings, documents, techniques and technical data, processes, materials, apparatus and intellectual property of any kind whatsoever.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or Services in accordance with these Conditions.

Customer: the person or entity who purchases the Goods and/or Services from the Supplier.

Force Majeure Event: has the meaning given in clause 10.

Goods: the goods (or any part of them) as set out in the Order/Order Acknowledgment.

Order: The Customer’s order for the Goods and/or Services, as set out in the Customer’s purchase order form or in the Customer’s acceptance of the Supplier’s quotation, as the case may be.

Order Acknowledgment: The Supplier’s written acknowledgment of the Customer’s purchase order.

Services: the services to be carried out by the Supplier as per the Order/Order Acknowledgment.

Specification: any specification for the Goods and/or Services, including any related plans and drawings, that are agreed in writing by the Customer and the Supplier.

Supplier: Penny Engineering Ltd (registered in England and Wales with Company Number 01380206).

1.2 Construction. In these Conditions, the following rules apply:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors or permitted assigns.

(c) A reference to a statute or statutory provision is a reference to such statute or 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.

(d) 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.

(e) A reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT

2.1 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.

2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force unless expressly stated to the contrary.

2.6 A quotation for the Goods and/or Services given by the Supplier shall not constitute an offer.

3. GOODS

3.1 To the extent that the Goods are to be manufactured and/or installed in accordance with the 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 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 Specification. This clause 3.1 shall survive termination of the Contract.

3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

4. DELIVERY

4.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready to be delivered.

4.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

4.3 Any dates quoted for delivery of the Goods or the carrying out of the Services are approximate only, and the time is not of the essence. Whilst every effort will be made by the Supplier to deliver the Goods and/or carry out the Services on or before the date stated, no binding guarantee is given or implied and no claim will be accepted by the Supplier arising from or in connection with late delivery. Further, the Supplier shall not be liable for any loss or damage of any kind and howsoever arising by reason of any failure to deliver the Goods or carry out the Services on such stated dates.

4.4 The Supplier may deliver the Goods in more than one consignment even if not envisaged by the Order and/or Order Acknowledgment.

4.5 If the Supplier fails to deliver the Goods and/or perform the Services (in whole or part), its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Goods and/or Services of similar description and quality in the cheapest market available, less the price of the Goods and/or Services. The Supplier shall have no liability for any failure to deliver the Goods and/or Services to the extent that such failure 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 and/or Services.

4.6 If the Customer fails to take or accept delivery of the Goods or allow the Services to be performed within three Business Days of the Supplier notifying the Customer that the Goods or Services are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:

(a) delivery of the Goods/performance of the Services shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready for delivery or the Services were ready to be performed and the Supplier will be entitled to invoice accordingly;

(b) the Supplier shall store the Goods until any actual delivery takes place, and charge the Customer for all related losses, costs and expenses (including insurance);

(c) the Supplier will be entitled to charge the Customer for all related losses, costs and expenses caused as a result of having to reschedule the performance of the Services.

4.7 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods or Services were ready, the Customer has not taken or accepted delivery, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods. The Supplier would then be released from any obligation to perform the Services.

5. QUALITY

5.1 The Supplier warrants that on delivery and for a period of 12 months thereafter, the Goods shall conform in all material respects with their Specification, be free from material defects in design, material and workmanship, and be of satisfactory quality.

5.2 The Supplier shall ensure that the Services are provided using reasonable care and skill and in accordance with generally recognised commercial practices and standards.

5.3 The Supplier shall not be liable for a breach of the warranties in clauses 5.1 and 5.2 if:

(a) the Customer makes any further use of the Goods after giving notice of the defect;

(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or Services;

(c) the Customer alters or repairs the Goods without the written consent of the Supplier;

(d) the defect arises from fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;

(e) the defect arises from the Supplier following any specification or design supplied by the Customer;

(f) the defect arises from any materials supplied by the Customer.

6. TITLE AND RISK

6.1 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 Supplier has received payment in full for the Goods.

6.3 Until title to the Goods passes to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;

(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(c) not destroy, deface or obscure any identifying mark or packaging on the Goods;

(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price.

7. PRICE AND PAYMENT

7.1 The price of the Goods and/or Services shall be the price set out in the Order/Order Acknowledgment, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

7.2 The Supplier 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 due to:

(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or the Specification; or

(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.

7.3 Payment shall be due within 30 days of the date of the invoice, in pounds sterling, unless otherwise agreed in writing.

7.4 If the Customer fails to make any payment due to the Supplier under the Contract by the due date, then the Supplier may charge interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time.

8. INSOLVENCY

8.1 If the Customer becomes subject to any of the following events:

(a) a petition is presented for the Customer’s winding up or the Customer goes into liquidation;

(b) a receiver, administrator, administrative receiver or similar officer is appointed over the whole or any part of the Customer’s business or assets;

(c) the Customer makes any composition or arrangement with its creditors;

(d) the Customer ceases or threatens to cease to carry on business; the Supplier may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and all outstanding sums shall become immediately due.

9. LIMITATION OF LIABILITY

9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

(a) death or personal injury caused by its negligence;

(b) fraud or fraudulent misrepresentation;

(c) any other liability which cannot be limited or excluded by law.

9.2 Subject to clause 9.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of use, loss of data, or any indirect or consequential loss arising under or in connection with the Contract.

9.3 The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract shall in no circumstances exceed the price of the Goods and/or Services supplied under the Contract.

10. FORCE MAJEURE

10.1 The Supplier shall not be liable for any failure or delay in performance due to a Force Majeure Event, including but not limited to fire, flood, earthquake, storm, explosion, acts of God, war, terrorism, riot, civil commotion, government action, strike, lockout, labour dispute, power failure or any other cause beyond the Supplier’s reasonable control.

11. GENERAL

11.1 The Contract is governed by English law, and the parties submit to the exclusive jurisdiction of the English courts.

11.2 No failure or delay by the Supplier in exercising any right or remedy provided by law or under the Contract shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.

11.3 If any provision of these Conditions is found by any court or administrative body to be invalid, unenforceable, or illegal, the other provisions shall remain in force.

11.4 The Customer may not assign or transfer any of its rights or obligations under the Contract without the Supplier’s prior written consent.