In these terms and conditions unless the context otherwise requires: -
“Agreement” shall mean the Quotation, PO and these terms and conditions;
“Customer” means the person or company named in the Quotation and PO, and to whom PPM provides the Services;
“Customer Materials” means instructions, drawings, designs, specifications, requirements and other information required from the Customer for the provision of the Services;
“Deliverables” means the goods ancillary to the supply of the Services;
“Intellectual Property Rights” means copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trademarks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
“PO” means the purchase order sent by the Customer to PPM based on the Quotation; these terms and conditions shall be incorporated into the PO by reference;
“PPM” means Pulsar Process Measurement Ltd whose registered office is Cornwall Court, 19 Cornwall Street, Birmingham, B3 2DT;
“Quotation” means the quotation form provided by PPM to the Customer setting out the commercial details agreed between the parties; these terms and conditions shall be incorporated into the Quotation by reference;
“Services” means the services supplied to the Customer by PPM pursuant to the Quotation, together with the Deliverables;
“WEEE” shall mean waste electrical and electronic equipment as defined in the WEEE regulations.
“WEEE Regulations” shall mean The Waste Electrical and Electronic Regulations 2013 (As Amended).
2. Entire Agreement
2.1. Unless PPM expressly agrees in writing to the contrary, the Agreement constitutes the entire agreement between the parties and supersedes all previous agreement, understandings and arrangements between them, whether in writing or oral in respect of the Services. For the avoidance of doubt, the Agreement will apply instead of any set of standard terms or conditions on or attached to the Quotation, PO or invoice or any other document relating to the Services.
2.2. Each party acknowledges that it shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Agreement. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Agreement.
3. Commencement and Term
The Agreement shall commence on the date upon which the PO is accepted in writing by PPM (for the purposes of this clause 3 “in writing” includes email) and shall, unless terminated sooner pursuant to clause 14 continue until the expiry of the warranty in respect of the last Deliverable delivered under the Agreement.
4.1. PPM shall provide the Services as described in the Quotation.
4.2. Unless expressly agreed to the contrary in writing, any date or time for the performance of the Services shall be an estimate only and time shall not be of the essence in the provision of Services. PPM shall use its reasonable endeavours to perform the Services in accordance with any commencement or end dates specified for performance in the Quotation. Services which do not have specified commencement or end dates shall be performed by PPM within a reasonable period of time.
4.3. The parties shall render each other such reasonable assistance as shall be necessary for them to carry out their obligations hereunder
4.4. Upon the acceptance of a PO, PPM will commence work in line with the Customer’s requirements. Cancellations and/or amendments to the Agreement must be agreed in writing by PPM. The Customer will be liable to any costs associated with such cancellation or reschedule consequently.
4.5. PPM shall not be liable for any failure of the Services (including any delays) or the Deliverables caused directly or indirectly, in whole or in part, by:
4.5.1. the Customer’s delay or failure in providing the Supplier with adequate and accurate Customer Materials;
4.5.2. any breach by the Customer of any of its obligations under the Agreement; or
4.5.3. Force Majeure.
4.6. PPM warrants that the Services shall be performed in accordance with Good Industry Practice.
4.7. Except as set out in this clause 4:
4.7.1. PPM gives no warranty and makes no representations in relation to the Services; and
4.7.2. the conditions implied by the Supply of Goods and Services Act 1982 ss 12–16 are expressly excluded.
5. Customer Obligations
5.1. The Customer shall at all times and in all respects:
5.1.1. perform its obligations in accordance with the terms of the Agreement;
5.1.2. comply with any additional or special responsibilities and obligations of the Customer specified in the Quotation;
5.1.3. pay the fees in accordance with clause 6 and the terms of the Quotation;
5.1.4. co-operate with PPM in all matters arising under the Agreement or otherwise relating to the performance of the Services;
5.1.5. inform PPM in a timely manner of any matters (including any health, safety or security requirements) which may affect the provision of the Services;
5.1.6. ensure that all tools, equipment, materials or other items provided to PPM for the provision of the Services are suitable for the performance of the Services, in good condition and in good working order; and
5.1.7. obtain and maintain all necessary licences, permits and consents required to enable PPM to perform the Services and otherwise comply with its obligations under the Agreement.
5.2. The Customer confirms that any Customer Material it provides to PPM:
5.2.1. shall not be unlawful, offensive, defamatory or in breach of any third party Intellectual Property Rights or data protection rights;
5.2.2. shall be accurate, complete, clear, unambiguous in all respects and, where applicable, in the format directed by PPM. The Customer shall respond to any questions or clarifications requested by PPM regarding the Customer Materials in a timely manner; and
5.2.3. shall be provided in a timely manner having regard to the timescales agreed between the parties for the provision of the Services.
5.3. If any Customer Material is inaccurate, incomplete or subject to any change after the Services have commenced, PPM shall suspend Services until the parties agree and sign a new Quotation detailing the amended fees and estimated timescales. The Customer acknowledges and agrees PPM shall not be liable for any delay in providing the Services resulting from inaccurate, incomplete or changed Customer Material.
Customer Testing Equipment
5.4. If the Customer provides testing equipment to PPM under the Agreement, it is the Customer’s responsibility to ensure the test equipment provided is, at all times, up-to-date, in good working order and sufficient in quantity. PPM may request, and the Customer shall provide at its own cost and expense, replacement, maintenance, calibration or additional testing equipment as reasonably required for PPM to perform the Services. The Customer shall bear the cost and expense of delivery of the testing equipment to PPM.
5.5. The Customer’s testing equipment shall at all times remain the property of the Customer. If the Customer does not enter into any new Quotations within a 12-month period from when the testing equipment is delivered to PPM, PPM may its sole option and at the cost and expense of the Customer, return the testing equipment to the Customer.
5.6. The customer shall provide test specifications, equipment, and software that is fully functional and approved for the product undergoing testing, in advance of any manufacturing commencing. The customer will meet the cost incurred by PPM for any additional test procedures or time required in addition to the quotation. In the event the customer supplied test procedure, equipment or software fails, the customer will accept and make full payment for all products that do not pass a test.
All Free Issue Components
5.7. All free issue components provided by the Customer to PPM, if any, shall be provided in the format directed by PPM and within in a timely manner having regard to the timescales agreed between the parties for the provision of the Services. PPM may its sole option and at the cost and expense of the Customer, return or dispose of any all free issue components which are excess to requirements. All Free Issue Components
5.8. The Customer warrants that:
5.8.1. it has the right, power and authority to enter into the Agreement and to grant PPM the rights (if any) contemplated under the Agreement; and
5.8.2. the Customer Materials and all other information, documents, materials, data or other items provided by the Customer pursuant to the Agreement do not infringe the Intellectual Property Rights of any third party.
6.1. The fees set out in the relevant Quotation and PO are calculated on the basis of information supplied by the Customer; if any information provided by the Customer is inaccurate or incomplete PPM reserves the right to review and amend the fees accordingly.
6.2. The Customer shall pay the fees within 30 days of the date of invoice. If any sums payable by the Customer are not paid by the due date PPM reserves the right to charge the Customer interest calculated daily after, as well as before any judgement on any outstanding sums for the period for which such sums remain outstanding after the due date. Interest payable shall be calculated at a rate per annum equivalent to the Base Lending Rate of the National Westminster Bank plus 4%.
6.3. Cheques or Bankers’ Drafts shall be made payable to Pulsar Process Measurement Ltd, Unit 5 Lancaster Way, Earls Colne Business Park, Earls Colne, Essex CO6 2NS, or such address as PPM may notify to the Customer in writing from time to time.
BAC’s payments and transfers are also acceptable and shall be deposited no later than the due date of payment into the bank account of PPM. Bank details are available on request.
6.4. Unless otherwise agreed, all payments to PPM shall be made in GBP Sterling. All payments shall be made without any withholding, set-off or deduction whatsoever.
6.5. All payments due under this clause 6 shall only be deemed to have been made when cleared or funds have been received by PPM and credited to the account specified.
6.6. PPM reserves the right by giving notice to the Customer at any time before delivery of the Deliverables (in part or whole) to pass-through any increase in the cost to PPM which is due to any factor beyond the control of PPM (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, third party supplier price increases) or to any change in delivery dates, quantities or specifications for the Deliverables which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give PPM adequate information or instructions.
Delivery of the Goods shall be FCA under Incoterms 2020 unless otherwise agreed in writing. All charges for post and packing will be charged to the Purchaser. Arrangements will be made with a suitable carrier or as specified by the Purchaser for delivery to the Purchaser’s address on the date specified. The Purchaser shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
8. Retention of Title
Title in the Deliverables shall remain vested in PPM and shall not pass to the Customer until the fees set out in the PO have been paid in full and received by PPM.
9.1. Subject to clause 9.2, PPM warrants that it will, at its sole option, replace or repair Deliverables in which, under proper use, defects appear, provided that:
9.1.1. the Customer makes the claim in writing to PPM within three (3) months after despatch of the Deliverable or such other period as may be agreed by the Parties in the Quotation (“Warranty Period”);
9.1.2. the Deliverables to which the claim relates are returned to PPM within the Warranty Period in suitable packaging, with carriage paid for by the Customer and, where relevant, in accordance with any particular instructions which PPM may have notified to the Customer at the time of original despatch.
9.2. This warranty does not extend to defects or irregularities in the Deliverables caused by faulty design or manufacture resulting from PPM’s use of the Customer Materials or the rectification of faults caused by improper use, operator errors, accidents, changes and additions not approved by PPM or carried out by the Customer or any third party, inadequate environmental conditions, use under conditions other than those specified, insufficient maintenance by the Customer, third party products not supplied by PPM or by other external influences. The replacement of consumable accessories (e.g. writing and printing elements, colour subcarriers etc. and batteries in particular) is not a constituent of the warranty.
9.3. Returned Deliverables (whole or in part) must be accompanied by an advice note stating the original invoice number in respect of the Deliverable and the nature of any claimed defect, together with such further information as PPM may stipulate. In cases where the Deliverables are replaced, the returned Deliverables shall become the property of PPM. This warranty shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the Goods except any implied by law which by law cannot be excluded.
10. Repair Services (outside of Warranty)
10.1. Any repair services in respect of the Deliverables outside of the Warranty Period may be provided by PPM to the Customer at additional cost and expense to be agreed between the parties in writing before the provision of such repair services. Such repair services are subject to availability of materials and does not extend to Deliverables which have suffered excessive physical or electrical damage or been subject to modifications made by the Customer or any third party without PPM approval.
10.2. PPM may at its absolute discretion either repair Goods which it accepts for repair or replace them with substitute Goods.
10.3. PPM shall not be under any liability whether in contract, tort or otherwise and whether or not resulting from the negligence of PPM or of its employees, agents or sub-contractors in respect of defective repair work or for any damage or loss resulting there from or from the failure to give advice or information or the giving of incorrect advice or information.
11.1. Except in respect of injury to or death of any person and for fraud (for which no limit applies), the maximum aggregate liability of PPM under the Agreement whether in contract or tort including negligence shall not exceed the total fees paid or payable under the relevant Quotation.
11.2. Notwithstanding anything else contained in the Agreement PPM shall not be liable to the Customer for loss of income, loss of profits, loss of goodwill, loss of operation time, loss of anticipated savings, loss of contracts, loss of use or value of any equipment and/or software or for any indirect or consequential loss or damage whether arising from negligence, breach of contract or howsoever.
12. Intellectual Property Rights
12.1. Except as expressly agreed above, no Intellectual Property Rights of either party are transferred or licensed as a result of the Agreement.
12.2. All Intellectual Property Rights in the Customer Materials shall belong to and remain vested in the Customer.
12.3. PPM retains all Intellectual Property Rights in its proprietary technologies, business processes and methods, and all improvements thereto, that it discloses or deploys in the course of providing the Services. If, in the course of or as a result of any Services provided by PPM to the Customer, PPM or its employees or agents creates any document or other material protected by any Intellectual Property Rights, it is agreed that all legal and beneficial rights therein shall be owned by PPM, and the Customer shall have no rights therein beyond a non-exclusive licence for the duration of the Agreement to make copies for its own internal use of any document (but not of any other material) which may be delivered to the Customer by PPM. The Customer hereby waives any Intellectual Property Rights it may have in such document or material and assigns by way of present and future assignment any Intellectual Property Rights to PPM. The Customer shall execute any assignment or other instrument which may be necessary to give effect to this provision.
12.4. The Customer shall indemnify PPM against any and all liabilities, damages, obligations, claims, demands, reasonable costs and expenses (including reasonable legal fees) arising in any jurisdiction (whether arising from infringement (or alleged infringement) of any Intellectual Property Rights or any other cause whatsoever) by reason of:
12.4.1. work carried out by PPM in accordance with instructions given by the Customer in the Customer Materials; or
12.4.2. the use by PPM of any Customer Materials, Customer testing equipment or free issue components.
12.5. PPM shall promptly notify the Customer of receipt of any such Intellectual Property Rights claim and, unless the Customer fails to assume the conduct of the defence within a reasonable period PPM:
12.5.1. shall make no admission relating to the claim without the consent of the Customer (such consent not to be unreasonably withheld or delayed);
12.5.2. shall allow the Customer full discretion to conduct or settle all negotiations and proceedings; and
12.5.3. shall give the Customer reasonable assistance, at the Customer’s cost and expense, in defending the claim.
13.1. Quality Statement
PPM Electronic Manufacturing Facility is registered by SIRA Certification Service to BS EN ISO9001:2015, Certificate No. 128818. The scope of registration is for the provision of contract electronic manufacturing services, including surface mount and through-hole assembly. The provision of associated services, including encapsulation, conforming coating, BGA placement/rework, cable assembly and full-box-build. The provision of special inspection services for printed circuit assemblies, including X-Ray and AOI. Where the Goods fall within the scope of registration, they will be manufactured under the Quality Assurance Certificate held by PPM Electronic Manufacturing Facility.
The Customer shall: -
13.2.1. Be responsible for financing the collection, treatment, recovery and environmentally sound disposal of:
i. All WEEE arising or deriving from the Goods, and
ii. All WEEE arising or deriving from Goods placed on the market prior to 13th August 2005 where such Goods are to be replaced by the Goods and the Goods are of an equivalent type of are fulfilling the same function as that of such Goods;
13.2.2. Comply with all additional obligations placed upon the Customer by the WEEE Regulations by virtue of the Customer accepting the responsibility set out in clause 13.2.1 and
13.2.3. Provide the Customer’s WEEE compliance scheme operator with such data, documents, information and other assistance as such scheme operator may from time to time reasonably require to enable such operator to satisfy the obligations assumed by it as a result of the PPM’s membership of the operator’s compliance scheme.
13.2.4. The Customer shall be responsible for all costs and expenses arising from and relating to its obligations in clause 13.2.
Further information in respect of the arrangements set out in clause 13.2 can be found at www.electrolink.eu.com by selecting ‘Business WEEE Collections’ and clicking on the ‘Continue’ button under ‘Final Users’ and quoting WEEE registration number WEE/HE0060TU where prompted.
14.1. Either party may (without prejudice to its other rights) terminate the Agreement by notice in writing to the other party in the event of:
14.1.1. breach of the Agreement by the other Party and, where such breach is capable of remedy, such breach is not remedied within thirty (30) days after a written notice of such breach; or
14.1.2. bankruptcy, or either party commencing voluntary or involuntary winding up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or upon the filing of any petition seeking the winding up of either party, or upon either party making a general assignment for the benefit of its creditors, or shall cease to carry on business.
14.2. Force Majeure. PPM shall not be liable to the Customer for any loss or damage, and shall not be liable to re-perform any Services, due to any cause beyond its reasonable control ("Force Majeure") including without limitation any act of God, extreme weather conditions, difficulty delay or failure in manufacture production or supply by third parties of components, equipment, materials or services, failure or shortage of power supplies, epidemic, flood, drought, lightning or fire, strike, lock-out, blockade, trade dispute or labour disturbance (other than strikes, lock-outs, trade disputes or labour disturbances directly involving its employees), the act or omission of Government, highways authorities, public telecommunications operators or other competent authority, terrorism, wars, military operations, riot, earthquake, explosion, burst pipes, malicious damage, impact, civil commotion and accidental damage. In the event of Force Majeure PPM may at its sole option (without prejudice to its other rights) delay the performance of or terminate the whole or any part of the Agreement and shall not be held responsible for such delay or cancellation or any inability to delivery.
14.3. Upon termination of the Agreement for any reason whatsoever:
14.3.1. the Customer shall pay PPM all sums owing and for all Services performed up to the date of termination;
14.3.2. PPM shall return all Customer Material to the Customer unless there is any legal or regulatory reason that PPM cannot return such Customer Material.
15. Governing Law and Jurisdiction
The Agreement shall be governed by and constructed and interpreted in accordance with the law of England and Wales and the courts of England & Wales shall have exclusive jurisdiction to settle any disputes or claims which may arise out of or in connection with the Agreement.
In the event the Agreement is translated into a non-English language and there is any conflict or inconsistences between the two language versions, the English language version shall prevail.