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Presco Radiator Caps

Terms and Conditions

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The Customer's attention is drawn in particular to clauses 5.4 and 8.

1. Interpretation

1.1 Definitions

Approved Customer: means a Customer that is approved by PRCL as being subject to alternative credit arrangements pursuant to these Conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 4.30 pm on any Business Day.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.

Contract: the contract between PRCL and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from PRCL.

Delivery Location: has the meaning given in clause 4.2.

Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.

Goods: the goods (or any part of them) set out in the Order.

Order: the Customer's order for the Goods, as set out in the Customer's purchase order form, or the Customer's written acceptance of PRCL's quotation, as the case may be.

PRCL: Presco Radiator Caps Limited (registered in England and Wales with company number 03859389).

Warranty Period: has the meaning given in clause 5.1.

1.2 Interpretation

  • (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  • (b) A reference to a party includes its successors and permitted assigns.
  • (c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
  • (d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
  • (e) A reference to writing or written excludes fax but not email.

2. Basis of Contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order or other document).

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.

2.3 The Order shall only be deemed to be accepted when PRCL issues a written acceptance or acknowledgement of the Order, at which point and on which date the Contract shall come into existence.

2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.5 Any samples, drawings, descriptive matter or advertising produced by PRCL, including on its website, and any descriptions or illustrations contained in PRCL's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6 A quotation for the Goods given by PRCL shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.

3. Goods

3.1 The Goods are described on PRCL’s website, or in PRCL’s catalogue.

3.2 The Customer shall indemnify PRCL against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by PRCL in connection with any claim made against PRCL for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with PRCL's use of a specification provided by the Customer. This clause 3.2 shall survive termination of the Contract.

3.3 PRCL reserves the right to request the return of any samples supplied to the Customer. The Customer shall, at its cost, return the samples in a resaleable condition to PRCL within 10 Business Days. If the returned samples, in PRCL’s reasonable opinion, are not in a resaleable condition, PRCL may invoice the Customer the trade wholesale price for the Goods that are not in a resaleable condition.

3.4 In respect of Customers based outside the United Kingdom, PRCL reserves the right to delay manufacture of the Goods until payment of a deposit or other financial arrangement, as agreed by the parties, has been exercised.

4. Delivery

4.1 PRCL shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods.

4.2 PRCL shall:

  • (a) deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing; or
  • (b) make the Goods available at its premises for collection by the Customer
  • (Delivery Location) at any time after PRCL notifies the Customer that the Goods are ready.

4.3 Delivery is completed on the completion of:

  • (a) in the case of 4.2(a), unloading of the Goods at the Delivery Location; and
  • (b) in the case of 4.2(b), the Customer or its nominated carrier loading the Goods at the Delivery Location.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. PRCL shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide PRCL with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If PRCL fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. PRCL shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide PRCL with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Customer fails to take delivery of the Goods within three Business Days of PRCL notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or PRCL's failure to comply with its obligations under the Contract in respect of the Goods:

  • (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which PRCL notified the Customer that the Goods were ready; and
  • (b) PRCL shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If ten Business Days after the day on which PRCL notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, PRCL may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.

4.8 PRCL may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. Quality

5.1 PRCL warrants that on delivery, and:

  • (a) in the case of Customers based in the United Kingdom, for a period of 12 months from the date the Goods are shipped to the Customer; or
  • (b) in the case of Customers based outside of the United Kingdom, for a period of 12 months from the date which is 28 days after the dated of the Bill of Lading,
  • (Warranty Period), the Goods shall:
    • (i) conform in all material respects with their description;
    • (ii) be free from material defects in design, material and workmanship; and
    • (iii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

5.2 Subject to clause 5.3, if:

  • (a) the Customer gives notice in writing to PRCL during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
  • (b) PRCL is given a reasonable opportunity of examining such Goods (including by the Customer supplying photographic evidence of any defects or additional information as required by PRCL promptly on request); and
  • (c) the Customer (if asked to do so by PRCL) returns such Goods to PRCL's place of business at the Customer's cost,

PRCL shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 PRCL shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:

  • (a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
  • (b) the defect arises because the Customer failed to follow PRCL's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
  • (c) the defect arises as a result of PRCL following any drawing, design or specification supplied by the Customer;
  • (d) the Customer alters or repairs such Goods without the written consent of PRCL; or
  • (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.

5.4 Except as provided in this clause 5, PRCL shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.6 These Conditions shall apply to any repaired or replacement Goods supplied by PRCL.

6. Title and Risk

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the earlier of:

  • (a) PRCL receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment; and
  • (b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

  • (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as PRCL's property;
  • (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  • (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
  • (d) notify PRCL immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
  • (e) give PRCL such information as PRCL may reasonably require from time to time relating to:
    • (i) the Goods; and
    • (ii) the ongoing financial position of the Customer.

6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before PRCL receives payment for the Goods. However, if the Customer resells the Goods before that time:

  • (a) it does so as principal and not as PRCL’s agent; and
  • (b) title to the Goods shall pass from PRCL to the Customer immediately before the time at which resale by the Customer occurs.

6.5 At any time before title to the Goods passes to the Customer, PRCL may:

  • (a) by notice in writing, terminate the Customer's right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
  • (b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. Price and Payment

7.1 The price of the Goods shall be the price set out in the Order and confirmed by PRCL in its written acceptance or acknowledgement of the Order.

7.2 PRCL may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

  • (a) any factor beyond PRCL's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
  • (b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
  • (c) any delay caused by any instructions of the Customer or failure of the Customer to give PRCL adequate or accurate information or instructions.

7.3 The price of the Goods:

  • (a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to PRCL at the prevailing rate, subject to the receipt of a valid VAT invoice; and
  • (b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer unless:
    • (i) agreed otherwise by the parties; or
    • (ii) the Customer is located outside of the United Kingdom, in which case the parties shall agree the costs and charges in an Order.

7.4 PRCL may invoice the Customer for the Goods on or at any time after issuing acceptance or acknowledgement of an Order.

7.5 The Customer shall pay, in full and in cleared funds to a bank account nominated in writing by PRCL, each invoice submitted by PRCL:

  • (a) in respect of Approved Customers: within 30 days of the end of the month that the invoice is dated or in accordance with any credit terms agreed by PRCL and confirmed in writing to the Customer; or
  • (b) in respect of Customers that are not Approved Customers and based in the United Kingdom or Europe: immediately on receipt of the invoice or in accordance with any credit terms agreed by PRCL and confirmed in writing to the Customer; or
  • (c) in respect of Customers that are not Approved Customers and based outside the United Kingdom or Europe: immediately on presentation of a copy of the Bill of Lading.

7.6 PRCL may withhold providing any documentation necessary to unload the Goods at a receiving port until payment has been received in cleared funds in accordance with clause 7.5(c). Any third party charges attributable to a delay in providing the documentation necessary to unload the Goods at a receiving port due to the Customer’s non- compliance with this clause 7.6 shall be payable by the Customer.

7.7 Time for payment shall be of the essence of the Contract.

7.8 If the Customer fails to make a payment due to PRCL under the Contract by the due date, then, without limiting PRCL's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time.

7.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Limitation of Liability

8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.2 Nothing in the Contract limits any liability for:

  • (a) death or personal injury caused by negligence;
  • (b) fraud or fraudulent misrepresentation;
  • (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
  • (d) defective products under the Consumer Protection Act 1987; or
  • (e) any liability that legally cannot be limited.

8.3 Subject to clause 8.2, PRCL's total liability to the Customer shall not exceed 150% of the price of the Goods paid to PRCL by the Customer under a Contract.

8.4 Subject to clause 8.2, the following types of loss are wholly excluded:

  • (a) loss of profits;
  • (b) loss of sales or business;
  • (c) loss of agreements or contracts;
  • (d) loss of anticipated savings;
  • (e) loss of use or corruption of software, data or information;
  • (f) loss of or damage to goodwill; and
  • (g) indirect or consequential loss.

8.5 This clause 8 shall survive termination of the Contract.

9. Termination

9.1 Without limiting its other rights or remedies, PRCL may terminate this Contract with immediate effect by giving written notice to the Customer 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 that party 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), obtaining a moratorium, 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 so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

9.2 Without limiting its other rights or remedies, PRCL may suspend provision of the Goods under the Contract or any other contract between the Customer and PRCL if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or PRCL reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

9.3 Without limiting its other rights or remedies, PRCL 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.

9.4 On termination of the Contract for any reason the Customer shall immediately pay to PRCL all of PRCL's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, PRCL shall submit an invoice, which shall be payable by the Customer immediately on receipt.

9.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

10. Force Majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two months, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.

11. General

11.1 Assignment and other dealings

  • (a) PRCL may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
  • (b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of PRCL.

11.2 Confidentiality

  • (a) Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2(b).
  • (b) Each party may disclose the other party's confidential information:
    • (i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.2; and
    • (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • (c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11.3 Entire agreement

  • (a) The Contract constitutes the entire agreement between the parties.
  • (b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

11.4 Variation

No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.5 Waiver

  • (a) Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  • (b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.6 Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.7 Notices

  • (a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
    • (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
    • (ii) sent by email to the following addresses (or an address substituted in writing by the party to be served):
      • (A) in the case of PRCL: [email protected]; [email protected]; and any other person specified in an Order.
      • (B) in the case of Customer, the person(s) specified in an Order or if none are specified, any person that PRCL has been dealing with in respect of the Order.
  • (b) Any notice shall be deemed to have been received
    • (i) if delivered by hand, at the time the notice is left at the proper address;
    • (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the two Business Day after posting; and
    • (iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
  • (c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.8 Third party rights

11.9 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

11.10 Governing law

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

11.11 Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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