Terms and Conditions
PNJ Engineering Ltd , commercial register code 04502414, with its registered office at Unit 30 Kinwarton Farm Road, Arden Forest Industrial Estate, Alcester, Warks B49 6EH.
and All suppliers have concluded this agreement (hereinafter the Agreement).
1.1. Delivery Note shall mean the Seller’s delivery document(s). Delivery Note shall include, inter alia, the name, unit price, quantity and the value of the Products, but also other items as required by applicable law;
1.2. Delivery Schedule shall mean the purchase estimates made by the Purchaser as specified and/or as made by the Purchaser and provided to the Seller from time to time. The Purchaser is entitled to alter the Delivery Schedule unilaterally any time by written notice to the Seller (new Delivery Schedule);
1.3. Party in singular shall mean the Purchaser or the Seller and Parties in plural shall mean the Seller and the Purchaser;
1.4. Purchase Order shall mean any written order made by the Purchaser to purchase the Products via facsimile, e-mail or letter;
1.5. Product(s) shall mean the products itemized in the Appendix number xx of this Agreement; or
1.5 Product(s) shall mean any products ordered by the Purchaser from the Supplier;
1.6. Unless otherwise stated herein, monetary references are references to GB£.
2. SUBJECT OF THE AGREEMENT
2.1. The Purchaser wishes to purchase the Products from the Seller. The Seller undertakes to deliver the Products and to transfer the ownership of the Products to the Purchaser pursuant to the terms and conditions of this Agreement.
2.2. The Seller shall provide the Purchaser with a written acceptance or rejection of the Purchase Order within 3 (three) days from the date of the Purchase Order, if not rejected within the said days, the Seller shall be deemed to have accepted the Purchaser Order. Any counter offer(s) made to the Purchaser by the Seller shall be accepted entirely at the discretion of the Purchaser by means of Purchaser’s written acceptance. The Seller shall not deliver the Products pursuant to verbal instructions.
2.3. Each Purchase Order which is accepted pursuant to paragraph 2.2 shall constitute an individual legally binding contract between the Purchaser and the Seller. Such contract is covered by the Agreement.
2.4. Unless otherwise stated in writing by the Purchaser, the Delivery Schedule(s) shall under no circumstances be considered binding Purchase Order. Furthermore, the Purchaser is under no obligation to purchase from the Seller any specific number of Products.
2.5. The Seller is entitled to start production of a new product, not listed in the Appendix — of this Agreement, only after such products is presented on the Delivery Schedule provided to the Seller by the Purchaser.
3. SPECIFICATION, QUALITY AND INSPECTION
3.1. All Products must be
(a) of highest quality and fit for their normal purpose or any other purpose as provided to the Seller by the Purchaser,
(b) be equal in all respects to relevant samples, or patterns provided by or accepted by the Purchaser;
(c) free from defects in design, material and workmanship.
(d) Material found to be defect at the end customer of the Purchaser in this Contract
3.2. The Products supplied to the Purchaser shall conform in all respects with the drawings, specifications and other requirements or descriptions provided by the Purchaser.
3.3. The Seller shall not make changes to the construction of the Products without Purchaser’s prior written consent. The Seller shall not transfer the manufacturing of the Products to any third person, without prior written consent of the Purchaser.
3.4. The Seller shall ensure that the Products comply in all respect with all relevant requirements of the applicable laws in force at the time of the delivery.
3.5. The Purchaser shall be entitled to inspect the quality of the Products at any reasonable time at the Seller’s premises, but such inspection shall not constitute acceptance or approval of the Products. If upon such inspection any Products are found defective or not in accordance with the Agreement, the Purchaser shall inform the Seller in writing and the Seller shall at its own expense make the Products to comply in all respect with the Agreement.
4.1. Unless otherwise stated in writing by the Purchaser, the Seller shall deliver the Products to the Purchaser at the time and in the place specified in the Purchaser Order.
4.2. If no delivery term and/or destination are agreed between the Parties, the delivery is due allowing for standard leadtime and the Products must be delivered to the address detailed on the top of page 1.
4.3. In case of cross border delivery of the Products, the parties apply the delivery terms, including insurance and transfer of risk of Incoterms 2000. The Products shall be delivered DDP to the Purchasers’ address.
4.4. In the event the Seller fails to deliver the Products within the agreed delivery times, the Seller shall, upon becoming aware of the delay, or at the time when he should have became aware, and in any event not less than one (1) week prior to the agreed delivery time, notify the Purchaser of the delay in writing. The aforementioned notification of delay in delivery shall state the reason for the delay as well as a proposal for a new delivery time.
4.5. If the Parties fail to agree upon a new delivery time in accordance with clause 4.4 or/and if the respective delivery is delayed for reasons other than a force majeure situation, as prescribed in paragraph 13, the Purchaser shall be entitled to cancel the delivery in question without any liability to the Seller. If the Purchaser purchases corresponding products from a third party, the Seller shall compensate the Purchaser for any and all direct costs arising from that replacement purchase. The Seller shall also compensate the Purchaser for any costs incurred from the end user as a result of late delivery of the product.
4.6. The Products shall have package, which is necessary to prevent the Products from being soiled, damaged or deteriorating during normal transport, handling, and temporary storage. The Seller shall comply with all reasonable special instructions of the Purchaser with respect to packaging. The Seller shall be liable for all damages caused to Products during transportation as a result of inadequate packaging.
4.7. Upon delivery all Products shall pass the acceptance test of the Purchaser’s inspector and/or any other person appointed by the Purchaser, and shall not be deemed to having been accepted until the Purchaser has had a reasonable time to inspect them.
4.8. The Purchaser is entitled to reject the Products, which do not conform completely in every respect with the terms of the Purchase Order and in particular with the paragraphs 3.1 to 3.4 of this Agreement.
4.9. At the request of the Purchaser, the Seller shall be responsible for the expense of any defect material and products rejected under Paragraph 4.8.
4.10. Purchaser’s signature, given on any Delivery Note, or other documentation presented for signature in connection with delivery of the Products, is evidence only of received packages. In particular, it is no evidence that the correct quantity or number of the Products has been delivered or that the Products delivered are in good condition or of the correct quality.
4.11. The Seller shall quote the Purchase Order numbers on all relevant delivery documents, Delivery Notes and invoices.
4.12. All packages must be numbered and the numbers shown on the relevant invoices and the Delivery Notes.
4.13. The Purchaser is entitled, without any liability to the Seller, to cancel a delivery provided that respective written notification is made to the Seller not less than 10 (ten) days prior to the agreed delivery date. If the respective written notification is made less than seven (7) days prior to the agreed delivery date the Purchaser sole liability shall be to pay to the Seller the price of the Products in respect of which the Purchaser has exercised the right of cancellation, less the Seller’s net savings of costs arising from cancellation.
5. RISK AND OWNERSHIP
5.1. Risk in the Products shall pass to the Purchaser at the time of delivery of the Products to the Purchaser in accordance with this Agreement.
5.2. The ownership of the Products shall pass to the Purchaser from the time of delivery to the Purchaser. If the payment in full for the Products is made prior to delivery, then the ownership shall pass to the Purchaser once payment has been made.
6. PRICE AND PAYMENT TERMS
6.1. The price of the Products shall be as stated in the Appendix – of this Agreement, and unless otherwise so stated, shall be
(a) exclusive of any applicable value added tax, which shall be payable by the Seller, and
(b) inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Products to the address as indicated in the Purchase Order and any duties or levies other than value added tax.
6.2. The price of the Products shall not be increased without the prior written consent of the Purchaser.
6.3. Unless otherwise stated in the Purchase Order, payment of the price of the Products comprised in each consignment delivered pursuant to the Purchase Order shall become due in sixty (60) days after the receipt of the relevant Seller’s invoice, but in any case it shall not fall due prior to delivery of the respective Products, unless otherwise agreed between the Parties.
6.4. The Purchaser shall be entitled to set off against the price any sums owed to the Purchaser by the Seller.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. The Purchaser’s drawings, specifications, manuals, documents and data, which the Purchaser provides to the Seller, are the exclusive property of the Purchaser. The Seller may not use any drawing, technical document, or other technical information which it has received from the Purchaser for any purpose other than for the purpose of carrying out its obligations under this Agreement.
7.2. The Seller shall warrant that the sale of the Products to the Purchaser or the use of the Products by the Purchaser is not infringing any third party rights, including but not limited to patent, trademark, or other intellectual property rights.
7.3. The Seller shall indemnify the Purchaser from all actions, costs, claims, demands, expenses and liabilities whatsoever resulting from any actual or alleged infringement as set forth in paragraph 7.2. The Seller shall (at Purchaser’s option) on Seller’s costs defend the Purchaser or assist in the defence of any proceedings which may be brought in connection to paragraph 7.2, provided that the Seller shall be under no liability under paragraph7.2.
8. HAZARDOUS PRODUCTS
8.1. Packaging and labelling of the Products shall comply with the European Union legal requirements.
8.2. If so required by law, the Products shall be accompanied with instructions for use, and any other information which enables the assessment and avoidance of risks in the intended use of the Products.
9. TERMINATION OF PRODUCING THE PRODUCTS
In the event the Seller intends to terminate the production of the Products in whole or in part, the Seller shall notify the Purchaser thereof in writing at least three (3) months prior to the intended action.
10. TERM AND CANCELLATION OF THE AGREEMENT
10.1. This Agreement shall enter into force at the moment of signing by both Parties and shall be valid for twelve months. The Agreement shall be automatically renewed for a further period of twelve months, unless terminated by either Party giving to the other not less than 60 days prior written notice.
10.2. This Agreement may be terminated prematurely unilaterally by three months written notice to the other Party.
10.3. The Purchaser shall be entitled to terminate any Purchase Order and/or the Agreement immediately without any liability to the Seller by written notice, if
(a) the Seller fails to fulfil its obligations under the Agreement and the Seller has not remedied such breach within fifteen (15) calendar days from Purchaser’s written notice;
(b) the Seller has filed for or placed in bankruptcy or liquidation procedure;
(c) the Seller ceases, or threatens to cease, to carry on the production of the Products;
(d) the Seller breaches any warranty given in connection to the Products. The termination of the Agreement does not waive the Purchaser’s right to claim compensation for the damage caused by the Seller.
10.4. The Seller shall be entitled to terminate any Purchase Order and/or the Agreement immediately without any liability to the Purchaser by written notice to the Purchaser, if
(a) the Purchaser fails to fulfil its obligations under the Agreement and the Purchaser has not remedied such breach within fifteen (15) calendar days from Seller’s written notice;
(b) the Purchaser has filed for or placed in bankruptcy or liquidation procedure. The termination of the Agreement does not waive the Seller’s right to claim compensation for the damage caused by the Purchaser.10.5. Termination of the Agreement in accordance with paragraphs 10.2 to 10.4 shall not terminate all outstanding Purchaser Orders, whether accepted or not by the Seller, which shall be fulfilled and carried out in accordance with this Agreement.
11 . WARRANTY
11.1. Without prejudice to any other remedy, if Product is not supplied in accordance with the Agreement, or if any defects shall materialise within a period of twelve (12) months after delivery the Purchaser shall be entitled at the Purchaser’s option to require the Seller to
(a) repair the Product, or
(b) to supply replacement Product within the time stated in writing by the Purchaser.
(c) Reimburse in full the Purchaser for any costs incurred relating to the defect product irrespective of the product’s location.
Party in default of the Agreement shall mitigate and, upon the first request of the other Party, compensate the other Party any damage caused, irrespective of fault or hardship, to the other Party by the default, including, but not limited to, legal fees, debt collection and other expenses, decrease of assets, lost profit. For the purposes of clarification, the legal expenses shall be compensated in full, irrespective of and in addition to any partial compensation of such expenses according to any procedural law or court order or judgement.
13. FORCE MAJEURE
13.1. The Party shall not be liable for violation of its obligations under the Agreement if the violation of the obligations is caused by such impediments as held Force Majeure under the principles of the International Chamber of Commerce (ICC publication 421) or UK court practice, which make it impossible to fulfil the Agreement, and which the Seller could not foresee or avoid with reasonable efforts.
13.2. If Force Majeure hinders the timely fulfilment of the obligations of the Party under the Agreement, the time for the fulfilment of the obligation will be postponed by a period when the fulfilment of the obligation was hindered by Force Majeure.
13.3. A Party is entitled to terminate the Agreement with immediate effect without liability if a Force Majeure situation prevents the fulfilment of this Agreement for a continuous six-month period.
14.1. Both the Purchaser and the Seller hereby acknowledge that, in connection with the Products and conclusion and/or performance of the Agreement, they may learn trade secrets or other confidential information relating to the assets, business, strategies, processes, etc. of the other and that such confidential information is a valuable, special and unique asset of the other’s business. Both the Purchaser and the Seller shall hold in confidence and not to disclose, and shall instruct its employees to hold in confidence and not to disclose any such confidential information to any third person without a prior written permission of the other.
14.2. Any information not generally available to the public will be considered confidential for purposes of the Agreement. The obligations of this section shall remain valid and binding for indefinite period of time. This section shall not limit presenting the Agreement and documents related to the (non-) performance of the Agreement to any authority supervising the activities of the Purchaser or the Seller.
15.1. All notices and communication between the Parties and arising out of or related to the Agreement (hereinafter the Notices) shall be in writing in the English language and shall be delivered by hand or sent by registered mail, by facsimile or e-mail to the address
(a) indicated in the Agreement or (b) notified to the other party from time to time in writing. A Notice so addressed pursuant to this clause shall be deemed to have been received:
(a) If personally delivered, at the time of delivery;
(b) If sent by delivery or registered post:
(i) Posted in the country of the intended recipient, three (3) working days after the date of posting to the relevant address;
(ii) Posted in the country of the sender, ten (10) working days after the date of posting to the relevant address;
(c) if sent by facsimile or e-mail, when respective machine confirmation of transmission is provided to the sender.
16. DISPUTE RESOLUTION
16.1. Any dispute, controversy or claim arising out of or related to this Agreement, or the breach, termination or invalidity thereof shall be finally settled by the Arbitration Court of the UK Chamber of Commerce and Industry in accordance with the Rules of the Arbitration Court of the UK Chamber of Commerce and Industry (hereinafter the Rules). There shall be three arbitrators in the Arbitration Tribunal, that shall be appointed in accordance with the Rules. The place of arbitration shall be UK. The language of the proceedings (including documentation) shall be English.
17.1. The Agreement shall override any contrary, different or additional terms or conditions, if any, contained on or referred to documents or correspondence from the Seller, unless accepted by the Purchaser in written form. No additional alteration or substitution of the Agreement will bind the Purchaser or form part of any Agreement unless they are expressly accepted in writing by a person authorised to sign on the Purchaser’s behalf.
17.2. This Agreement shall be governed by and construed and interpreted in accordance with the laws of UK as in effect on the date hereof and as may be hereafter amended.
17.3. Should any provision of this Agreement be legally invalid, such invalidity shall not affect the validity of the remaining provisions. In such case the Parties shall substitute the invalid provision with legally valid provision(s) consistent with the Parties’ original intent.
17.4. This Agreement shall be modified and/or amended only in written form.
17.5. This Agreement has been drawn up in English, in two (2) identical copies one (1) for either Party.
For and behalf of: PNJ Engineering Ltd