PCE Standard Terms & Conditions
1. Definitions and Terms of Contract
a) These conditions apply to any goods or services supplied by a group company of PCE Group Limited, including (but not limited to) PCE Automation Limited, DB Automation Limited and/or Premier Bowl Feeders Limited. In these conditions, ‘the Company’ shall refer to the relevant group company which has issued the relevant quotation or proposal, and the party to which such quotation or proposal has been issued (or with which the company has otherwise entered into a contract) is referred to as ‘the customer’.
b) All orders from the customer shall be treated by the company as an offer to purchase, on these standard conditions, goods (which term shall include complete machines and any parts therefore) and/or services and no contract shall come into existence until such order has been accepted by the company on an order acknowledgement. The customer is responsible for ensuring that the terms of its order and any applicable specifications are complete and accurate.
c) No amendment of or addition to these conditions shall be binding unless accepted by both the company and the customer in writing and no amendment or addition to any order, which has been accepted by the company, shall be effective unless accepted by the company on an order amendment acknowledgement
d) Unless incorporated in the order acknowledgement or in an order amendment, no terms, conditions or warranties put forward by the customer shall form part of any contract between the customer and the company.
e) The customer acknowledges that in entering into contract with the company it does not rely on any representation or statements which may have been made by the company or its servants or agents and all such representations or statements are hereby excluded save as may be expressly incorporated in these conditions, in the order acknowledgement or in any order amendment acknowledgement.
2. Copyright Materials
a) All drawings, quotations, proposals, illustrations, descriptions, leaflets, samples and models of or relating to any goods and/or services (herein together referred to as ‘materials’) which are supplied by the company are and remain the intellectual property of the company and may not be passed on to any third party or be copied or used by the customer for any purpose. All materials remain the property of the company and are returnable to the company forthwith on demand.
b) In these conditions, ‘intellectual property’ includes all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
3. Descriptions and Specifications
The company reserves the right to alter the disposition, shape, dimensions, materials, weights and any other particulars of goods and/or services which appear or are stated in any leaflets, catalogues, drawings, illustrations or advertisements relating to the goods and/or services. The company further reserves the right to amend the specification of the goods and/or services if required by any applicable statutory or regulatory requirements.
a) Notwithstanding condition 1 (b), all prices quoted shall remain valid for 60 days unless otherwise stated in writing.
b) All prices are on net ex-factory basis and do not include packaging, delivery or VAT unless otherwise stated in writing.
c) The company reserves the right to charge the customer an additional amount to cover extra costs and expenses resulting from a lack of instructions from the customer, requests by the customer to suspend work and/or changes by the customer to its requirements, or required changes or additions to the goods or services which could not reasonably have been foreseen by the company.
d) In relation to services, the price shall be the price quoted by the quotation or proposal or, if not given in the quotation or proposal, the company’s standard service rates from time to time which are available upon request. Where services are provided on a time and materials basis:
i) The charges payable for the services shall be calculated in accordance with the company’s standard daily fee rates as published from time to time;
ii) The company’s standard daily fee rates for each individual person are calculated on the basis of an eighthour day, worked between 8.00 am and 5.00 pm on weekdays (excluding public holidays); and
iii) The company shall be entitled to charge an overtime rate at the rate published from time to time (or in the absence of publishing, at a rate of 150%) on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to above.
5. Delivery and Risk of Goods
a) All delivery dates or periods quoted by the company are the company’s best estimates and time shall not be of the essence in relation thereto.
b) All risk of loss, of or damage, to the goods shall pass to the customer according to Incoterms 2020, and the company shall supply all goods FCA the place of manufacture, unless otherwise stipulated and subject as specifically provided elsewhere in these conditions. For the avoidance of doubt, if there is any conflict between Incoterms 2020 and these conditions, these conditions shall prevail.
c) (i) In the case of failure to deliver by the estimated time the customer shall not rescind the contract for this reason unless no less than 14 days after the estimated delivery date the customer gives to the company notice in writing specifying a reasonable period within which the goods in question are required to be delivered and the company fails to deliver within that period, and in any other case of failure to deliver the customer shall not rescind the contract for this reason unless it has given the company notice in writing specifying a reasonable period within which the goods are required to be delivered and the company fails to deliver within that period.
(ii) No claim for short delivery or in respect of damage in transit will be accepted by the company unless the shortage or damage where manifest is noted on the delivery note or in any other case is reported to the company and the carrier within five working days of delivery and in either such event the sole responsibility of the company shall be within a reasonable period to make up the shortfall or to repair or replace the damaged goods.
d) Save as set out in paragraph (c) above, the company shall have no liability whatsoever in respect of non-delivery, short delivery or damage in transit.
e) Where goods are to be delivered in instalments and the company fails to deliver any one or more instalments in accordance with the terms of the contract or the customer claims that the goods in any one or more instalments have not been delivered in accordance with the terms of the contract, the customer shall not be entitled to treat the contract as a whole as repudiated.
f) The customer shall be responsible for obtaining all necessary licenses and permissions for the import of the goods into the country of destination and for obtaining any import licences or permits necessary for the entry of the goods into the customer’s territory or the territory where the goods are to be delivered in relation to any services, and the customer shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the goods and accordingly.
g) Furthermore, the customer warrants to the company that it has informed the company of all laws and regulations affecting the importation, use, installation, sale, packaging and labelling of the goods which are in force within the customer’s territory or the territory into which the goods are to be delivered.
6. Passing of Property in Goods
a) Goods supplied by the company shall remain the property of the company until payment in full of all monies owing by the customer to the company in respect of such goods has been received by the company and until such time, the customer shall hold the goods as bailee for the company. No payment shall be deemed to have been received until the company has received cleared funds.
b) Notwithstanding that property in the goods has not passed to the customer, the customer shall be entitled to use the same in the ordinary course of its business and to resell the same provided always that the proceeds of any such resale or, if less, such part of the proceeds as is equal to the amount of the company’s invoice shall be held on trust by the customer for the company until such time as the company has received payment in full in respect of all amounts owing by the customer to the company in respect of such goods.
c) Notwithstanding that property in any goods has not passed to the customer, the company shall be entitled to sue the customer for the price thereof if not paid on the due date.
d) All goods, property in which has not passed to the customer shall be kept insured by the customer for no less than the invoice value thereof and any proceeds of such insurance shall be held on trust for the company.
e) The company shall be entitled at any time to repossess goods which remain the property of the company and the customer hereby grants to the company, its agents and servants a license to enter upon any premises which such goods are stored for the time being for the purpose of repossessing the same and agrees to give the company such assistance as the company may require for such purpose.
7. Payment Terms
a) All payments made, or funds payable to the company by the customer should be in cash in sterling unless otherwise agreed in writing by the customer. Where the customer’s payment under clause is subject to any bank transfer fees or other administrative charges then such charges shall be paid by the customer.
b) Unless otherwise noted on the order acknowledgement, where the order is raised and payment will be made from the United Kingdom, 30% of the price shall be payable on the placing of the order, 30% shall be payable on design qualification, 30% on FAT acceptance and prior to shipping, and 10% from ex-works. All amounts shall be paid in cash without deduction.
c) Where goods are to be exported from the United Kingdom, or the customer is resident outside of the United Kingdom, the paragraph above shall not apply and unless otherwise agreed in writing 50% of the total price shall be payable without deduction on the placing of the order. The balance shall be payable prior to the goods leaving the company’s premises following customer inspection of the goods at the company premises, or 30 days following the company’s written notification via post or email, that the goods are ready for inspection (whichever is the sooner). Customer acceptance will be assumed, and payment invoiced if there is no customer representation within the 30day period.
d) Paragraphs (a) and (b) shall apply to complete machinery only and in the case of other goods and of the provision of services, the price shall be due and payable forthwith upon presentation of invoice by the company.
e) Interest shall be due on all overdue payments both before and after judgment at the rate of 4% above the base rate from time to time of the Bank of England until such time as the company receives payment in full (and if the base rate falls below 0%, the interest rate shall be 4%).
f) Where any sum payable by the customer to the company remains unpaid in breach of the terms of paragraphs (a), (b), (c) or (d) above the company shall be entitled to suspend design, manufacture or delivery of any goods contracted to be supplied until such time as the paid sum has been paid in full together with interest.
8. Good, Warranty and Standard of Services, and Limitation of Liability
a) Subject as otherwise provided in this condition 8 including in particular clause 8(b), the company warrants that for a period of twelve months from FAT acceptance or delivery (whichever is the earlier), the goods or, in the case of overhauled or reconditioned machines, the new parts therefore shall be free of all defects in workmanship and materials.
b) Where the company is not the manufacturer of the goods, the above warranty shall not apply, and the company shall use reasonable endeavours to transfer to the customer the benefit of any warranty or guarantee given to the company.
c) The sole obligation of the company for breach of condition 8 (a) shall be at its option to grant the customer a credit at the price at which the goods were invoiced or to repair or replace the defective goods with all reasonable dispatch provided that in all cases the allegedly defective goods are promptly returned to the company carriage paid and have been found after examination by the company not to have complied with the aforesaid warranty.
d) The company shall have no liability under paragraphs (a) and (b) above to the extent that the defect in the goods has been caused or contributed to by the goods not having been stored, used or maintained in a proper manner, the customer having performed or permitted to be performed any authorised maintenance or repair of or alteration to the goods, the operations being performed by the goods not corresponding as to shape, weight, size or consistency with those specified by the customer before or upon placing with order with the company, the packing materials, containers and labels used with the goods not complying with specifications laid down by the company or the goods having been used otherwise than in compliance with any specifications laid down by the company.
e) Save as otherwise referred to in the order acknowledgement, guarding shall be provided for all goods. Upon request by the customer, the company shall provide further guarding on terms and upon prices to be agreed. No responsibility is accepted by the company in relation to compliance with laws and regulations of countries outside the United Kingdom relating to guarding.
f) The company shall use reasonable endeavours to provide any agreed services to the customer in accordance in all reasonable respects with the quotation or proposal.
g) The company shall use reasonable endeavours to meet any performance dates specified but such dates shall be estimates only and time shall not be of the essence.
h) The customer shall:
i) provide the company, in a timely manner, such information, data or other input material as the company may require for the performance of the services and ensure that it is accurate in all material respects;
ii) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the services;
iii) inform the company of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the customer’s premises;
iv) ensure that all customer equipment is in good working order and suitable for the purposes for which it is used in relation to the services and conforms to all relevant United Kingdom or other standards or requirements applicable to the jurisdiction where the premises are located; and
v) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the services before the date on which the services are to start.
i) If the company’s performance of the services is in any way or part prevented or delayed by any act or omission of the customer , its agents, subcontractors, consultants or employees, the company shall not be liable for any costs, charges or losses sustained or incurred by the customer arising directly or indirectly from such prevention or delay.
j) The customer shall not, without the prior written consent of the company, at any time from the date of the contract to the expiry of 24 months after the last date of supply of any services, solicit or entice away from the company or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the company in the provision of the services.
Limitation of Company Liability and Customer Indemnity
k) Save as set out above, the company shall have no liability whatsoever to the customer arising out of or in connection with the sale or supply of goods and/or services by the company to the customer whether for direct, indirect, consequential or any other type of loss and whether the same shall have been caused by the negligence, misrepresentation or other tort of the company or by any breach or non-performance by the company of the contract with the customer and all conditions, warranties or other terms that are express or implied by law or otherwise inconsistent with this condition 8 are hereby excluded, provided always that nothing in these conditions shall exclude the liability of the company for death or personal injury caused by its negligence.
l) The customer shall indemnify the company against claims, damages, costs and expenses for which the company may become liable through executing any order in accordance with the specifications of the customer including (but not limited to) any which may involve the infringement of any patent, copyright, registered design or other intellectual property right.
m) The customer shall indemnify the company against all claims, losses, costs and expenses made against or suffered by the company arising from or incurred by reason of any loss, injury or damage suffered by a third party and arising out of the operation of the goods.
9. Testing of Goods
At the request of the company, goods may be tested in the presence of the Customer, at the premises of the company in order to verify the compliance of such goods with the contract. The customer shall supply all necessary products and packaging materials to the agreed specifications in order to permit such testing to be performed.
10. Commissioning of Goods
Where the company agrees in writing to commission the goods at the premises of the customer, the customer shall at its own expense and in such manner as the company may specify, prepare its premises for the installation of the goods and shall provide such materials, facilities and personnel as the company may require for the purpose of commissioning the goods. Any extra cost or expense incurred by the company as a result of the failure of the customer to comply with its obligations under this condition 10 or because of any problems in installation and commissioning arising out of equipment not supplied by the company shall result in an extra charge being levied by the company at its then current rates. For the avoidance of doubt, the company shall not be liable for any failure to install or commission goods where the reason therefore is the incompatibility of detect in or unsuitability for the purpose of any equipment supplied other than by the company or incompatibility of the customer’s premises or similar.
11.1 Without limiting its other rights or remedies, the company may terminate its contract with the customer with immediate effect by giving written notice if:
a) the customer commits a material breach of any term of the contract and (if such a breach is remediable) fails to remedy that breach within 7 days of the customer being notified in writing to do so;
b) the customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
c) the customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
d) the Customer’s financial position deteriorates to such an extent that in the company’s opinion the customer’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy.
11.2 Without limiting its other rights or remedies, the company may suspend provision of any goods and/or services under any contract between the customer and the company if the customer becomes subject to any of the events listed above or the company reasonably believes that the customer is about to become subject to any of them, or if the customer fails to pay any amount due on the due date for payment.
11.3 Without limiting its other rights or remedies, the company may terminate the contract with immediate effect by giving written notice to the customer if the customer fails to pay any amount due under the contract on the due date for payment.
11.4 On termination of the contract for any reason (other than via the company’s default) the customer shall immediately pay to the company all of the company’s outstanding unpaid invoices and interest and the company may raise an invoice for any work (including goods and/or services) completed or part-completed (with a suitable reduction for part-completed works) which also shall become immediately payable.
12. Force Majuere
The company shall have no liability to the customer for any delay or failure in performance to the extent that any such delay or failure arises from causes beyond the control of the company including but not limited to fire, floods, acts of God, acts or regulations of any governmental or supranational authority, war, riot, strike, lock-outs and industrial disputes.
13.1 The company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract.
13.2 The customer may not assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract.
14. Governing Law
The contract between the company and the customer shall be governed by and construed in accordance with English Law and both parties shall submit to the exclusive jurisdiction of the English courts.
The content above is that of Version 6.0 of WAR006 – Standard Terms and Conditions, published November 2019.