Terms

TERMS AND CONDITIONS OF SALE

Performance Enclosures Limited

Definitions
- In these Conditions :

“Authorised Account” means account which has been duly authorised as a credit facility for the Buyer by the Seller.

“Buyer” means the person, firm or body, whose Order is accepted by the Seller.

“Conditions” means the standard terms and conditions of sale set out in this document including any special terms and conditions otherwise agreed in writing between the Buyer and the Seller.

“Goods” means items which are supplied to the Buyer by the Seller under an Order.

“Order” means the Sellers’ official order form bearing a purchase order number together with these Conditions.

“Seller” means Performance Enclosures Ltd (Company No:- 02619925) whose registered office is at 6 Rockfort Industrial Estate, Hithercroft Road, Wallingford, Oxfordshire, OX10 9DA.

1.1 The headings in these Conditions are for convenience only and shall not affect their interpretation

1.2 The singular shall include the plural

Orders

The Seller shall sell and the Buyer shall purchase the Goods in accordance with any Order which is accepted by the Seller.
Such acceptance shall only be effective, where it is made in writing by the Seller or an authorised agent of the Seller and is subject to availability.
By placing an Order for Goods the Buyer shall be deemed to have accepted these Conditions, which shall govern the Order to the exclusion of any other terms and conditions.
No Order which the Seller has accepted may be cancelled by the Buyer except with the Seller’s agreement in writing and on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs, damages and expenses incurred by the Seller as a result of cancellation.

Delivery

3.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises as notified to it at the time of the Buyer’s Order or to the last premises at which it delivered Goods to the Buyer, if not so notified or by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection.

3.2 Any dates quoted on the Order for delivery of the Goods are approximate only. The Seller shall not be liable for any delay in delivery of the Goods and time shall not be of the essence of these Conditions.

3.3 The Seller will use all reasonable endeavours to ensure that the quantity, size and description of the Goods delivered conforms to those ordered by the Buyer, although minor variations in the same may occur.

3.4 If the Seller fails to deliver the Goods for any reason other than a cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, then its liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

3.5 If the Buyer fails to take delivery of the Goods then, without prejudice to any other right or remedy available to the Seller, the Seller may:

3.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs, including insurance and storage; or

3.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for any excess over the price under the Order or charge the Buyer for any shortfall below the price under the Order

Price
- The price of the Goods shall be the price agreed when the Goods are ordered from the Seller as set out in the Order, unless otherwise agreed in writing, and the Seller will not be responsible for any losses caused to the Buyer by reason of fluctuation in currency exchange rates between the date when the Goods were ordered and when they are delivered. All prices quoted are valid only for the particular Order which the Buyer makes.
- For the avoidance of doubt all catalogues, price lists and other advertising literature or materials used by the Seller are intended as an indication of price and the range of goods available. No prices, descriptions or other particulars contained therein shall be binding on the Seller.
- All prices are given by the Seller exclusive of costs of carriage unless otherwise agreed in writing which shall be charged at the rate specified in the Order and of any applicable Value Added Tax, all of which the Buyer shall be additionally liable to pay to the Seller.

Terms of Payment
- Where the Buyer has an Authorised Account the Seller shall invoice the Buyer on delivery and such invoice shall be payable within 30 days thereof.
- Where the Buyer does not have an Authorised Account, the Buyer must provide the Seller with cleared funds for the full price, prior to delivery.

5.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, it shall be entitled to:

5.4.1 cancel the Order and/or suspend any further deliveries to the Buyer; and

5.4.2 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4% per annum above NATWEST Bank Plc base rate from time to time, until payment in full is made.

Risk and Property

6.1 The Goods shall be at the Buyer’s risk as from delivery.

6.2 In spite of delivery having been made property in the Goods shall not pass from the Seller until :

6.2.1 the Buyer shall have paid the price of the Goods plus VAT in full; and

6.2.2 no other sums whatever shall be due from the Buyer to the Seller.

6.3 Until property in the Goods passes to the Buyer in accordance with 6.2 above the Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.

6.4 The Seller shall be entitled to recover the full price for any Goods sold hereunder including VAT notwithstanding that the property in any such goods has not passed from the Seller.

6.5 The Buyer grants to the Seller an irrevocable licence to enter any premises owned occupied or controlled by the Buyer where the Goods are situated to repossess and remove delivered Goods the property of which has remained in the Seller. The Buyer shall be responsible for all costs, charges and expenses incurred in repossessing the Goods.

6.6 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller.

6.7 The Buyer shall insure and keep insured the Goods to their full price against “all risks” to the reasonable satisfaction of the Seller until the date that the property in the Goods passes from the Seller.

Without prejudice to the other rights of the Seller, if the Buyer fails to comply with its obligations under this clause 6 all sums whatsoever owing by the Buyer to the Seller shall forthwith become due and payable.

Software/Intellectual Property/Third Party Rights

All software, including related documentation, is supplied under licence of the applicable proprietary owner. Title to the software does not transfer to the Buyer under any circumstances.
The Buyer shall observe the intellectual property rights of any third parties vested in the Goods and/or licence of any software supplied with such Goods and shall not do anything which would infringe the rights or tamper with the same. The Buyer is hereby notified that failure to comply with such conditions could result in the Buyer being refused a software licence or having the same revoked by the proprietary owner.
All software provided under these conditions is supplied “as is” and the sole obligation of the Seller in connection with the supply of software is to obtain and supply a corrected version from the manufacturer concerned in the event that such software fails to conform to its product description or proves in any other way to be defective provided always that the Buyer notifies the Seller of any defect or non conformance to product description within thirty (30) days of the date of delivery of the applicable software.
The Buyer shall indemnify the Seller against any loss, damage or claim arising out of the Buyer’s operation or use of the Goods where such use of operation is in breach of the Buyer’s obligations set out in clause 7.1 above.

Warranties and Liability

8.1 The Seller shall be under no liability under the above warranty in respect of the following matters:-

8.1.1 for any defect arising from wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing) or misuse of the Goods;

8.1.2 if the total price for the Goods has not been paid by the due date for payment;

8.2 The Seller shall not be liable for any loss or damage arising from any variation in the manufacturers specifications. Nor will the Seller be liable for any loss or damage arising from any cessation or curtailment by the manufacturer of the Goods.

8.3 Subject 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.

8.4 Where Goods are sold under a consumer transaction the statutory rights of the Buyer are not affected by these Conditions].

8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods must be made in writing to the Seller within 7 days of receipt of the same otherwise the Buyer shall not be entitled to reject the Goods. In the case of a quality dispute the Goods shall be retained by the Buyer for inspection by the Seller.

Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace such Goods free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods, but Seller shall have no further liability to the Buyer in any event the Buyer shall not be entitled to receive any compensation, credit or refund in excess of that received by the Seller under any guarantee or warranty given to it by the manufacturer or the seller thereof.
Except in respect of death or personal injury caused by the Seller’s negligence, the entire liability of the Seller under or in connection with these Conditions shall not exceed the price of the Goods.

8.8 Notwithstanding anything else contained in these Conditions the Seller shall not be liable to the Buyer for loss of profits or orders or other indirect or consequential loses whether arising from negligence, breach of Contract or howsoever.

Termination

9.1 The Seller shall be entitled to cancel the sale of Goods under and any Order immediately by written notice to the Buyer if:

9.1.1 the Buyer commits any continuing or material breach of any of the provisions of these Conditions and, in the case of such a breach which is capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;

9.1.2 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Buyer;

9.1.3 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order;

9.1.4 the Buyer goes into liquidation (except for the purposes of an amalgamation, reconstruction or other reorganisation and in such manner that the company resulting from the reorganisation effectively agrees to be bound by or to assume the obligations imposed on that other party under these Conditions);

that other party ceases, or threatens to cease, to carry on business; or

9.1.6 anything analogous to the above occurs in any jurisdiction

9.2 If any of the events set out in clause 10.1 occurs the Seller shall be entitled to cancel any Order hereunder or suspend any further deliveries under any Orders without 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.

Export Sales
- In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of International Chamber of Commerce as in force at the date when the Order is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning in the provision of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
- Where the Goods are supplied for export from the United Kingdom the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
- The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
- Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered fob the air or sea port of shipment and the Seller shall be under no obligation to give notice under Section 32 (3) of the Sale of Goods Act 1979.

10.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

10.6 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened up by the Buyer in favour of the Seller and confirmed by a major clearing Bank in London acceptable to the Seller or, if the Seller has agreed in writing on or before acceptance of the Buyer’s Order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a Bill of Exchange drawn on the Buyer payable 60 days after sight to the Order of the Seller at such branch of NatWest Bank Plc as may be specified in the Bill of Exchange.

General

11.1 The Seller shall not be responsible for any delays in performing, or for any failure to perform, any of its obligations hereunder if the delay or failure was due to any cause beyond the Seller’s reasonable control.

11.2 If any provision of these Conditions is declared by any judicial or any other competent authority to be void, voidable, illegal or otherwise unenforceable or indications to that effect are received by either party from any competent authority then that provision shall be limited or eliminated to the minimum extent necessary so these Conditions shall otherwise remain in full force and effect and enforceable.

11.3 Each party acknowledges that these Conditions contain the whole agreement between the parties and that the Buyer has not relied on any oral or written representations made to it by the Seller or its employees or agents.

11.4 These Conditions supersede any prior agreement or understanding between the parties whether written or oral in respect of the subject matter hereof.

11.5 Any notice or other information required or permitted to be given by either party under these Conditions shall be deemed to have been validly given if served personally upon that party or is sent by first class pre-paid post to the last known address of that party. If sent by first class pre paid post the notice shall be deemed to have been received 2 working days after the date of posting. If any such notice or other information is given by means of facsimile, telex or other immediate form of communication, then notice shall be deemed to have been received on the same day, provided it is sent within normal working hours.

11.6 No purported variations of these Conditions shall be binding on the parties unless made in writing and signed by both parties.

11.7 No waiver by the Seller of any breach of these Conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provisions.

11.8 The Buyer shall not assign, transfer, charge or deal in any way with this Agreement or any of the rights under it in whole or part without the prior written consent of the Seller.

11.9 These Conditions shall be governed by and construed in accordance with the laws of England and the English Courts shall have non-exclusive jurisdiction to decide any dispute concerning these Conditions or the subject matter of these Conditions.