Conditions of Sale

1. Formation and Interpretation of Contracts
1. All contracts of sale of goods made by Pneumatic Components Limited ("the Seller") shall be deemed to incorporate these Conditions. No contract, and no purported variation of or addition to these Conditions or any contracts, is effective and until the Seller so agrees in writing signed by a director, the secretary or the sales manager of the Seller.
2. These Conditions shall override and take the place of any other terms and conditions in any other communication used by the Buyer in concluding the contract with the Seller. If any contract is made on the basis of any INCOTERMS or similar terms, these Conditions shall prevail should there be any inconsistency.
3. The complete or partial or unenforceability of any provision herein for any purpose shall in no way affect or enforceability of such provision for any other purpose or the remaining provisions. Any such provisions shall be deemed to be served for that purpose subject to such consequential modification as may be necessary for the purpose of such severance.
4. In these Conditions headings shall not affect construction and references are to them as amended, re-enacted and replaced, and to any subordinate legislation in force thereunder, from time to time and "subsidiary" and "holding company" are as defined in the Companies Acts 1985 and 1989, a "group member" of the Seller or the Buyer means its subsidiary or holding company or a subsidiary of its holding company and "control" is as defined in section 40 of the Income and Corporation Taxes Act 1988.
2. Prices
1. Unless otherwise expressly agreed in writing by the Seller, contracts are entered into on the basis that:-
   1. the price stipulated by the Seller is the net price of the goods (after deduction of any discounts) for delivery in accordance with these Conditions and it overrides any quotation or estimate.
   2. the price is exclusive of Value Added Tax and any other taxes, duties or impositions whatsoever, which if applicable shall be paid by the Buyer in addition, and
   3. the Seller may without prior notice adjust the price stated to take account of any change in specification made at the Buyer’s request or any change before the date of delivery in the cost to the Seller of labour, materials, supplies, fuel, power, sub-contracted services, transport, foreign currency or import or export duties or tariffs or other items without limitation which directly affect the cost to the Seller of supplying the goods or services.
2. Unless otherwise stated any packaging, carriage, insurance and any other charges stated separately from the price are payable by the Buyer at the same time, and shall be treated as an additional part of the price.
3. The consideration for the goods includes, as well as payment of the price, the performance of all the Buyer’s obligations under the contract incorporating these conditions and also taxes, duties and impositions referred to in Clause 2(1)(b) above and interest in accordance with Clause 3(2), below.
3. Payment
1. Unless otherwise expressly stated prices are due and payable to, and at such address or bank account as may be designated by the Seller, without set-off or counterclaim, in United Kingdom sterling in immediately available funds one month from the end of the month in which delivery is made. Payment by cheque or other negotiable instrument is ineffective until it is honoured and the Seller’s bank account is credited with the amount due.
2. Time of payment is of the essence in every contract. On failing to make full and prompt payment, the Buyer shall (without prejudice to any other rights of the Seller) become liable to pay to the Seller interest on the amount due at four per cent per annum above the base rate from time to time of The Royal Bank of Scotland PLC calculated on a daily basis from the date of due payment until the date of actual payment before and after (and as a separate continuing obligation not merging with) any judgement.
3. If the Buyer pays any amount to the Seller without apportioning it between specific debts or liabilities, it shall be apportioned as the Seller thinks fit. The Seller may attribute a partial payment to one or more specific items, rather than to all the items which are the subject of a particular contract.
4. Despatch and Delivery
1. Any stated delivery date is an estimate only. Whilst the Seller intends to use reasonable endeavours to keep any despatch or delivery date it shall incur no liability whatsoever (in contract, negligence or otherwise) for any loss (including, without limitation, consequential loss) or damage resulting from delay howsoever caused.
2. Except insofar as the contract provides otherwise, the Seller may select the method, and charge the Buyer for the cost of carriage.
3. Even if the price includes carriage the risk of the goods shall pass to the Buyer upon transfer at the Seller’s premises onto the carrier’s or the Buyer’s transport save that where the contract is stated for FOB or CIF risk shall pass to the Buyer when goods are delivered onto the ship or aircraft. If the goods are to be transported by the Seller, risk shall pass to the Buyer on delivery at the Buyer’s premises.
4. The Buyer shall keep the goods fully insured in their full replacement value against all risks prudently insured against and in good repair and condition between risk and property passing and shall on demand produce evidence thereof. If the Buyer fails to insure the Seller may do so on behalf of the Buyer, who shall reimburse the Seller on demand. Until the full price has been paid the Buyer shall hold on trust for the Seller the policy and proceeds of insurance, shall on request execute a formal assignment in favour of the Seller over the same or arrange for the Seller’s interest to be paid direct to the Seller failing which into a separate bank account on trust for the Seller.
5. In contracting for carriage and/or insurance of the goods in transit, the Seller shall be deemed to act solely as agent of the Buyer and Sections 32(2) and (3) of the Sales of Goods Act 1979 shall not apply.
6. If the goods are to be transported by the Seller then unless the Buyer notifies the Seller and any carrier in writing within 3 days (or in the case of non-delivery 7 days after the expected date of delivery) and in the case of short or damaged delivery, gives the Seller, any carrier and their agents a reasonable opportunity to inspect the goods as delivered the Seller will not be liable for non-delivery, and the Buyer may not reject goods for damaged delivery, whether before or after risk passes. In no event may the Buyer reject goods for short or late delivery.
7. The Buyer shall on demand pay the Seller a reasonable charge for (or reimburse the Seller for all expenses reasonably incurred in) any shortage, handling, insurance or other services provided or used by the Seller because the Buyer or carrier fails to accept delivery of the goods when tendered; and the Seller shall have no lien over the goods in respect thereof.
8. Any stated quantity or weight is an estimate only. Where goods are ordered in accordance with the Buyer’s special requirements the goods delivered may vary by up to 5% plus or minus and the price shall vary accordingly.
9. Each order by the Buyer, which is accepted by the Seller, shall be deemed to be a separate contract made under these Conditions and the Seller may deliver the goods by instalments, each instalment to be deemed to be the subject of a separate contract. Without limiting the other provisions herein, no failure of defect in delivery in respect of any contract or instalment will entitle the Buyer to any remedies whatsoever in relation to any other contract or instalment.
5. Property
1. Notwithstanding delivery of the goods in whole or in part or any document representing them, the Seller reserves the right of disposal of each item of goods, and the property therein shall not pass to the Buyer, until payment by the Buyer and receipt by the Seller of payment in full in the form of cleared funds of the whole of the consideration for such item and of all other monies on any account whatsoever owned by the Buyer to the Seller.
2. Pending the passing of property, the Buyer shall be bailee of the goods for the Seller and shall not dispose of, charge or encumber the goods or any interest therein or purport to do so, shall (in the absence to the contrary) be deemed to deal with the goods and other goods of the same type supplied by the Seller in the order in which they are delivered, shall retain possession of the goods in good order and condition free from any lien, shall store them separately or make them so that they may be readily identified as the Seller’s property and shall inform the Seller of their whereabouts on request.
6. Cancellation
1. The Buyer shall not cancel the contract without the written consent of the Seller, which if given shall be deemed to be on the express condition that the Buyer shall indemnify the Seller against all loss, damage, claims, expenses or actions arising out of such cancellation unless agreed in writing.

7. Specifications, Descriptions and Drawings
1. All specifications, descriptions, drawings and samples of goods and representations are approximate only being to intended to serve merely as a guide, and so the Buyer shall not rely on them and the Seller shall not be liable for their accuracy and the Seller may without limitation alter the goods to introduce improvements and no contract shall be contract by description and/or sample.
2. All Drawings, models and similar items prepared by the Seller and the copyright therein shall remain the property of the Seller and shall be returned by the Buyer on demand. All know-how, samples, models, designs and drawings relating to the goods or their development or creation shall remain the Seller’s property; shall be treated as confidential and shall not be copied, reproduced or disclosed to any third party without the Seller’s prior written consent.
8. Warranties, Limitations and Exclusions
1. If the Seller (acting reasonably) is satisfied that any goods supplied by the Seller are defective as to material or workmanship not caused wholly or partly while at the Buyer’s risk by wilful default, accident, improper storage or use or failure to follow instructions and providing that the goods have not been dismantled, altered or a repair attempted, the Seller’s liability shall be limited to make good the defect without charge by repair or replacement or (at the Seller’s discretion) waiver or refund of all or part of the price provided that the goods are returned to the Seller’s premises carriage paid within a reasonable time after the Buyer becomes aware of the defect and in any event within 12 months after despatch from the Seller’s premises. Where goods are returned by the Buyer it shall separately inform the Seller of this.
2. Where goods are returned to the Seller which are found not to be defective the Seller reserves the right to charge the Buyer a handling charge.
3. The Seller’s obligations and liabilities to the Buyer arising out of or in connection with the goods shall be limited to those expressly set out these Conditions (or otherwise accepted in writing by the Seller as part of the contract) and those which are imposed by law but only to the extent that by law they cannot be limited, restricted or excluded. The Buyer acknowledges that this is reasonable and reflected in the price and shall accept the risk and/or insure accordingly.
4. Subject to the foregoing, no collateral contract and no representation, warranty, condition, stipulation, liability or obligation whatsoever (including, without limitation, whether arising
   1. in contract, tort including negligence or otherwise; or
   2. expressly, implied, at common law, by statute, custom, usage or course of dealing or otherwise; or
   3. in relation to loss, injury or damage of any nature whatsoever whether direct or consequential) is give, made or undertaken by the Seller or its employees or agents in relation to the goods (including, without limitation, whether in relation to their description, correspondence with sample, state, condition, quality, performance, safety, merchantability, fitness for any particular purpose or other characteristic on delivery or at any other time), all of which are hereby excluded and extinguished.
9. Indemnity by the Buyer
1. The Buyer shall indemnify and hold harmless the Seller and all other Seller’s group members and its and their officers, employees and agents against all liabilities, losses, damages, costs, charges, expenses (including without limitation legal fees and expenses on a full indemnity basis), actions, proceedings, claims and demands incurred by or brought against any of them and arising directly or indirectly out of or in connection with any of the Buyer’s obligations under these conditions or any contract between the Buyer and the Seller.
10. Force Majeure
1. The Seller shall have the right to cancel or delay deliveries or to reduce the amount delivered without liability if the Seller is prevented, delayed or hindered from manufacturing or supplying (by normal routes or means of delivery) the goods through any circumstances beyond the sellers reasonable control (an event of “Force Majeure”) including (but not limited to) any Act of God, war, riot, civil commotion, revolution, blockade, embargo, strike, lock-out, sit-in, industrial or trade dispute, fire, explosion, flood, adverse weather, disease, accident to or breakdown of plant or machinery, or shortage of any material, labour, transport, electricity or other supply or any form of Government intervention.
11. Assignment
1. The Buyer may not assign, mortgage, charge, sub-let or otherwise dispose of any contract or any rights thereunder in whole or in part.
12. Events of Default, Termination, Repossession
1. The Buyer shall be deemed to be in default under each contract for the sale of goods under these Conditions if:
   1. the Buyer fails to pay promptly under Clause 3;
   2. the Buyer or any other Buyer’s group member breaches any contract with the Seller or any Seller’s group member;
   3. any steps are taken with a view to the Buyer or any other Buyer’s group member of any of their respective assets becoming subject to any form of winding up, administration, receivership, scheme of arrangement, voluntary arrangement, administrative receivership, the rights of a mortgagee in possession, insolvency proceedings, arrangements with creditors generally, enforcement of security or legal process or repossessions;
   4. the Seller certifies to the Buyer, or the Seller has reasonable grounds for believing that the Buyer or any other Buyer’s group member is insolvent or that the Seller’s right to receive payment, or its interest in the goods, is in jeopardy;
   5. the Buyer comes under the control directly or indirectly of any person who does not control the Buyer at the date the contract subject to these Conditions is entered into;
   6. where the Buyer is an individual or partnership, he or any partner dies or any steps are taken to make a bankruptcy order against him or any partner; or
   7. outside England and Wales, anything corresponding to any of the above occurs.
2. If the buyer is deemed to be in default under any contract Clause 12(1) the Seller may (at its discretion and without prejudice to its other rights) by written notice to the Buyer;
   1. suspend any deliveries to be made under, or terminate, cancel or rescind, the contract and any other contracts with the Buyer;
   2. repossess (and the Buyer hereby irrevocably authorises the Seller to enter the premises where any goods are or are thought to be) and resell any goods the property in which remains with the Seller;
   3. declare (whereupon there shall forthwith become) immediately due and payable any indebtedness of the Buyer to the Seller on any account whatsoever; and
   4. set off (to the extent it has not done so or is entitled to do so already) any indebtedness of the Buyer to the Seller, in each case on any account whatsoever.
13. Forbearance
1. The Seller’s rights shall not be prejudice or restricted by any concession, indulgence or forbearance extended to the Buyer and no waiver by the Seller in respect of any breach shall operate as a waiver in respect of any other or subsequent breach.
14. Notices
1. Any notice to be given under or pursuant to these Conditions shall be in writing and may be sent by hand or by post or by registered post or by the recorded delivery service or transmitted by telex or facsimile or other means of telecommunication resulting in the receipt of a written communication in a permanent form and such notice shall be addressed to the other party at its registered office or principle place of business or such address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Notices shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.
15. Instructions, Health and Safety and Intellectual Property
1. The Buyer shall comply, and ensure that it’s employees and agents, comply strictly will all instructions, warnings, data sheets and other material supplied by the Seller, with, or in connection with the goods and shall when supplying the goods, ensure that they are accompanied by the same.
2. The Buyer shall have no rights to any property owned or licensed by the Seller other than (if applicable) to resell the goods under the trade or service mark applied by the Seller and the Buyer shall not, without the Seller’s prior written consent, allow any trade or service mark applied by the Seller or any instruction or warning applied to the goods to be obliterated or obscured.
3. All know how, samples and other items relating to the goods or their development or creation shall remain the Seller’s property, shall be treated as confidential and shall not be cop