Prima Tooling Ltd
TERMS AND CONDITIONS OF SALE
1. Interpretation
1.1. The definitions and rules of interpretation in this condition apply in these conditions.
"Buyer" the person, firm or company who purchases the Goods from Prima Tooling Ltd;
"Prima Tooling Ltd" Prima Tooling Ltd the registered office of which is at Manor Place, Albert Road, Braintree, Essex, CM7 3JE;
"Contract" any contract between Prima Tooling Ltd and the Buyer for the sale and purchase of the Goods, incorporating these conditions;
"Delivery Point" the place where delivery of the Goods is to take place under condition 4 ;
"Goods" any goods agreed in the Contract to be supplied to the Buyer by Prima Tooling Ltd (including any part or parts of them);
"Intellectual Property" any copyrights, letters, patents, know how, inventions, utility models, registered and unregistered designs, trade and service
marks, trade names, logos, patent applications, rights in the nature of copyrights and all other similar rights in the Goods and (where applicable)
the Services; and
"Services" any services agreed in the Contract to be supplied to the Buyer by Prima Tooling Ltd.
1.2. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application
or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3. Words in the singular include the plural and in the plural include the singular.
1.4. A reference to one gender includes a reference to the other gender.
1.5. Condition headings do not affect the interpretation of these conditions.
2. Application of terms
2.1. Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions
(including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other
document).
2.2. No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other
document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3. These conditions apply to all Prima Tooling Ltd's sales and any variation to these conditions and any representations about the Goods or the
Services shall have no effect unless expressly agreed in writing and signed by a partner of Prima Tooling Ltd. The Buyer acknowledges that it has
not relied on any statement, promise or representation made or given by or on behalf of Prima Tooling Ltd which is not set out in the Contract.
Nothing in this condition shall exclude or limit Prima Tooling Ltd's liability for fraudulent misrepresentation.
2.4. Each order or acceptance of a quotation for Goods or Services by the Buyer from Prima Tooling Ltd shall be deemed to be an offer by the Buyer
to buy Goods and/or Services subject to these conditions. The Buyer shall ensure that the minimum value of its order is not less than the sum set
out in clause 7.2.
2.5. No order placed by the Buyer shall be deemed to be accepted by Prima Tooling Ltd until a written acknowledgement of order is issued by Prima
Tooling Ltd or (if earlier) Prima Tooling Ltd delivers the Goods to the Buyer or provides the Services to the Buyer.
2.6. The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7. Any quotation is given on the basis that no Contract shall come into existence until Prima Tooling Ltd despatches an acknowledgement of order
to the Buyer. Any quotation is valid for a period of 60 days only from its date, provided that Prima Tooling Ltd has not previously withdrawn it.
2.8. Acceptance of delivery of the Goods or performance of the Services shall be deemed conclusive evidence of the Buyer’s acceptance of these
Conditions.
2.9. Any typographical, clerical or other error or omission in any sales literature, quotation, acceptance of offer, invoice or other document or
information issued by Prima Tooling Ltd shall be subject to correction without any liability on the part of Prima Tooling Ltd.
3. Description
3.1. The quantity and description of the Goods or the Services to be performed shall be as set out in Prima Tooling Ltd's quotation or
acknowledgement of order.
3.2. All samples, drawings, descriptive matter, specifications and advertising issued by Prima Tooling Ltd and any descriptions or illustrations
contained in Prima Tooling Ltd's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods
described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3. If the Goods are to be manufactured or as part of the Services any process is to be applied to the Goods by Prima Tooling Ltd; or if the Goods
or Services are to be provided in accordance with a specification or any other document, data information or materials submitted by the Buyer, the
Buyer shall indemnify Prima Tooling Ltd against all loss, damages, costs and expenses awarded against or incurred by Prima Tooling Ltd in
connection with or paid or agreed to be paid by Prima Tooling Ltd in settlement of any claim for infringement of any patent, copyright, design, trade
mark or other industrial or intellectual property rights of any other person which results from Prima Tooling Ltd’s use of the Buyer’s information.
3.4. Prima Tooling Ltd reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable
statutory or EC requirements or, where the Goods are to be supplied to Prima Tooling Ltd’s specification, which do not materially affect their quality
or performance.
3.5. No order which has been accepted by Prima Tooling Ltd may be cancelled by the Buyer except with the agreement in writing of Prima Tooling
Ltd and on terms that the Buyer shall indemnify Prima Tooling Ltd in full against all loss (including without prejudice to the generality of the
foregoing loss of profit), costs (including without prejudice to the generality of the foregoing the cost of all labour and materials ordered, whether
used or un-used), damages, charges and expenses incurred by Prima Tooling Ltd as a result of cancellation.
4. Delivery
4.1. Unless otherwise agreed in writing by Prima Tooling Ltd, delivery of the Goods shall take place at Prima Tooling Ltd's place of business.
4.2. The Buyer shall take delivery of the Goods within 7 days of Prima Tooling Ltd giving it notice that the Goods are ready for delivery.
4.3. Any dates specified by Prima Tooling Ltd for delivery of the Goods or the performance of the Services are intended to be an estimate and time
for delivery shall not be made of the essence by notice. If no dates are so specified, delivery and performance shall be within a reasonable time.
4.4. Subject to the other provisions of these conditions Prima Tooling Ltd shall not be liable for any direct, indirect or consequential loss (all three of
which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages,
charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or the performance of the Services (even if caused by
Prima Tooling Ltd's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5. If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or Prima Tooling Ltd is unable to
deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.5.1. risk in the Goods shall pass to the Buyer;
4.5.2. the Goods shall be deemed to have been delivered;
4.5.3. Prima Tooling Ltd may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including,
without limitation, storage and insurance); and
4.5.4. sell the Goods at the best price readily attainable and (after deducting any costs for storage and other selling expenses) account to the
Buyer for the excess over the price or charge the Buyer for any shortfall below the price under the Contract.
4.6. The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the
Goods.
4.7. If Prima Tooling Ltd delivers to the Buyer a quantity of Goods (being bespoke, non-stock items) of up to 10% more or less than the quantity
accepted by Prima Tooling Ltd, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall
and shall pay for such goods at the pro rata Contract rate.
4.8. Prima Tooling Ltd may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with
the provisions of the Contract.
4.9. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the
Buyer to repudiate or cancel any other Contract or instalment.
5. Non-delivery
5.1. The quantity of any consignment of Goods as recorded by Prima Tooling Ltd on despatch from Prima Tooling Ltd's place of business shall be
conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2. Prima Tooling Ltd shall not be liable for any non-delivery of Goods (even if caused by Prima Tooling Ltd's negligence) unless the Buyer gives
written notice to Prima Tooling Ltd of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been
received.
5.3. Any liability of Prima Tooling Ltd for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a
credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. Risk/title
6.1. Risk of damage to or loss of the Goods shall pass to the Buyer:
6.1.1. in the case of Goods to be delivered at Prima Tooling Ltd’s premises, at the time when Prima Tooling Ltd notifies the Buyer that the Goods
are available for collection; or
6.1.2. in the case of Goods to be delivered otherwise than at Prima Tooling Ltd’s premises, at the time of delivery or, if the Buyer wrongfully fails to
take delivery of the Goods, the time when Prima Tooling Ltd has tendered delivery of the Goods.
6.1.3. in respect of deliveries made in accordance with clause 6.1(b) above and notwithstanding any other provision contained in these Conditions,
a transportation insurance policy shall be taken only at the Buyer’s written request and at the Buyer’s expense.
6.2. Ownership of the Goods shall not pass to the Buyer until Prima Tooling Ltd has received in full (in cash or cleared funds) all sums due to it in
respect of:
6.2.1. the Goods; and
6.2.2. all other sums which are or which become due to Prima Tooling Ltd from the Buyer on any account.
6.3. Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1. hold the Goods on a fiduciary basis as Prima Tooling Ltd's bailee;
6.3.2. store each consignment of the Goods (at no cost to Prima Tooling Ltd) separately from all other goods purchased from Prima Tooling Ltd and
those of the Buyer or any third party in such a way that they remain readily identifiable as Prima Tooling Ltd's property;
6.3.3. not remove, destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4. maintain the Goods in satisfactory condition and keep them insured on Prima Tooling Ltd's behalf for their full price against all risks to the
reasonable satisfaction of Prima Tooling Ltd. On request the Buyer shall produce the policy of insurance to Prima Tooling Ltd.
6.4. The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1. any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
6.4.2. any such sale shall be a sale of Prima Tooling Ltd's property on the Buyer's own behalf and the Buyer shall deal as principal when making
such a sale.
6.5. The Buyer's right to possession of the Goods shall terminate immediately if:
6.5.1. the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the
benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of
creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the
purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its
undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to
appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1
to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an
administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.5.2. the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to
observe or perform any of his/its obligations under the Contract or any other contract between Prima Tooling Ltd and the Buyer, or is unable to pay
its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.5.3. the Buyer encumbers or in any way charges any of the Goods.
6.6. Prima Tooling Ltd shall be entitled to recover payment for the Goods or the Services notwithstanding that ownership of any of the Goods has
not passed from Prima Tooling Ltd.
6.7. The Buyer grants Prima Tooling Ltd, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or
may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
6.8. Where Prima Tooling Ltd is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has
terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Prima Tooling Ltd to the Buyer in the order in which they were
invoiced to the Buyer.
6.9. On termination of the Contract, howsoever caused, Prima Tooling Ltd's (but not the Buyer's) rights contained in this condition 6 shall remain in
effect.
7. Price
7.1. Unless otherwise agreed by Prima Tooling Ltd in writing, the price for the Goods shall be the price set out in Prima Tooling Ltd's price list
published on the date of delivery or deemed delivery. The price for the Services shall be in accordance with the quotation provided by Prima Tooling
Ltd to the Buyer in accordance with clause 3.1.
7.2. The minimum value of the Buyer's order shall be not less than £20.00.
7.3. The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage
and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
7.4. In the event that the Buyer's order is to be delivered to the Buyer then the Buyer shall pay for the costs of carriage notified to the Buyer by
Prima Tooling Ltd from time to time.
7.5. Prima Tooling Ltd reserves the right, by giving notice to the Buyer at any time before the delivery to increase the price and/or the ancillary
costs to reflect any increase in the cost to Prima Tooling Ltd which is due to any factor beyond the control of Prima Tooling Ltd (such as, without
limitation, any foreign exchange fluctuation, currency regulation, alteration of taxes, levies or duties, significant increase in the costs of labour,
materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods or change to the required Services
which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Prima Tooling Ltd adequate
information or instructions.
8. Payment
8.1 Subject to condition 8.4 , payment of the price for the Goods or the Services is (unless otherwise agreed in writing by the parties) due in
pounds sterling within 30 days. Prima Tooling Ltd reserves the right to request payment for the Goods and/or Services in advance.
8.2 Time for payment shall be of the essence.
8.3. No payment shall be deemed to have been received until Prima Tooling Ltd has received cleared funds.
8.4. All payments payable to Prima Tooling Ltd under the Contract shall become due immediately on its termination despite any other provision.
8.5. The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount,
abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Prima Tooling Ltd to the
Buyer.
8.6. If the Buyer fails to pay Prima Tooling Ltd any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to Prima Tooling Ltd
on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of HSBC Bank plc, accruing on
a daily basis until payment is made, whether before or after any judgment. Prima Tooling Ltd reserves the right to claim interest under the Late
Payment of Commercial Debts (Interest) Act 1998.
9. Quality
9.1. Where Prima Tooling Ltd is not the manufacturer of the Goods, Prima Tooling Ltd shall endeavour to transfer to the Buyer the benefit of any
warranty or guarantee given to Prima Tooling Ltd.
9.2. Prima Tooling Ltd warrants that:-
9.2.1. (subject to the other provisions of these conditions) on delivery that the Goods shall be of satisfactory quality within the meaning of the Sale
of Goods Act 1979;
9.2.2. bought if the Buyer had made known that purpose to Prima Tooling Ltd in writing and Prima Tooling Ltd has confirmed in writing that it is
reasonable for the Buyer to rely on the skill; and
9.2.3. that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Contract and at
the intervals and within the times referred to in the Contract.
9.3. The above warranty is given by Prima Tooling Ltd subject to the following conditions:
9.3.1. Prima Tooling Ltd shall be under no liability if it is established by Prima Tooling Ltd that some part of the material used in manufacture was
defective;
9.3.2. Prima Tooling Ltd shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specification
supplied by the Buyer;
9.3.3. Prima Tooling Ltd shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the Price and all
ancillary costs have not been paid by the due date for payment.
9.4. Prima Tooling Ltd shall not be liable for a breach of either of the warranties in condition 9.2 unless:
9.4.1. the Buyer gives written notice of the defect to Prima Tooling Ltd, and, if the defect is as a result of damage in transit to the carrier, within 7
days of the time when the Buyer discovers or ought to have discovered the defect; and
9.4.2. Prima Tooling Ltd is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by
Prima Tooling Ltd) returns such Goods to Prima Tooling Ltd's place of business at Prima Tooling Ltd's cost for the examination to take place there.
9.5. Prima Tooling Ltd shall not be liable for a breach of either of the warranties in condition 9.2 if:
9.5.1. the Buyer makes any further use of such Goods after giving such notice; or
9.5.2. the defect arises because the Buyer failed to follow Prima Tooling Ltd's oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.5.3. the Buyer alters or repairs such Goods without the written consent of Prima Tooling Ltd.
9.6. Subject to condition 9.5 , if any of the Goods do not conform with either of the warranties in condition 9.2 Prima Tooling Ltd shall at its option
repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Prima Tooling
Ltd so requests, the Buyer shall, at Prima Tooling Ltd's expense, return the Goods or the part of such Goods which is defective to Prima Tooling
Ltd.
9.7. If Prima Tooling Ltd complies with condition 9.6 it shall have no further liability for a breach of either of the warranties in condition 9.2 in
respect of such Goods.
10. Limitation of liability
10.1. Subject to condition 4 , condition 5 and condition 9 , the following provisions set out the entire financial liability of Prima Tooling Ltd
(including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1. any breach of these conditions;
10.1.2. any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of
Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3. Nothing in these conditions excludes or limits the liability of Prima Tooling Ltd:
10.3.1. for death or personal injury caused by Prima Tooling Ltd's negligence; or
10.3.2. under section 2(3), Consumer Protection Act 1987; or
10.3.3. for any matter which it would be illegal for Prima Tooling Ltd to exclude or attempt to exclude its liability; or
10.3.4. for fraud or fraudulent misrepresentation.
10.4. Subject to condition 10.2 and condition 10.3 :
10.4.1. Prima Tooling Ltd's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or
otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
10.4.2. Prima Tooling Ltd shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct,
indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with
the Contract.
11. Export terms
11.1. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions 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.
11.2. 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 Prima Tooling Ltd) apply notwithstanding any other provision of these Conditions.
11.3. 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.
11.4. Unless otherwise agreed in writing between the Buyer and Prima Tooling Ltd, 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.
11.5. The Buyer shall be responsible for arranging for testing and inspection of the Goods at Prima Tooling Ltd's premises before shipment. Prima
Tooling Ltd 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.
11.6. Unless otherwise required by Prima Tooling Ltd, payment of all amounts due to the Seller shall be made by an irrevocable letter of credit, in a
form acceptable to Prima Tooling Ltd, to be opened by the Buyer in favour of Prima Tooling Ltd and confirmed by a bank in the United Kingdom
acceptable to Prima Tooling Ltd within 14 days after the Contract is concluded.
11.7. The Buyer shall not offer the Goods for resale in __________ or any other country notified by Prima Tooling Ltd to the Buyer at or before the
time the Buyer's order is placed, or sell the Goods to any person if the Buyer knows or has reason to believe that