STANDARD TERMS AND CONDITIONS OF SALE FOR DUFAYLITE DEVELOPMENTS LIMITED
1. DEFINITIONS AND EXPLANATION
2. IN THESE CONDITIONS:
‘Buyer’ means the person whose order for the Goods is accepted by the Seller;
‘Conditions’ means the standard terms and conditions of sale set out in this document
and (unless the context otherwise requires) includes any special terms and conditions
agreed in Writing between the Buyer and the Seller;
‘Contract’ means the contract for the purchase and sale of the Goods;
‘Goods’ means the goods (including any instalment of the goods or any parts for them)
which the Seller is to supply in accordance with these Conditions;
‘‘Seller’ means the Company, whose details are set out on the reverse and who is
supplying the Goods;
‘Writing’ includes facsimile, e-mail and electronic transmission and comparable means
of communication.
In the event of a conflict between the Standard Terms and conditions of Sale and the
Special Terms and Conditions, the latter shall apply.
2.1. Any reference in these Conditions to any provision of a statute shall be construed
as a reference to that provision as amended, re-enacted or extended at the relevant time.
2.2. The headings in these Conditions are for convenience only and shall not affect
their interpretation.
3. BASIS OF THE SALE
3.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with
any written purchase order of the Buyer, which is accepted by the Seller, by the issue of
an acknowledgement of order. No contract will arise between the Buyer and the Seller
until such acknowledgement of order is issued. All Goods are supplied subject to these
Conditions, which shall govern the Contract to the exclusion of any other terms and
conditions.
3.2. No variation to these Conditions shall be binding unless agreed in Writing
between the authorised representatives of the Buyer and of the Seller.
3.3. The Seller’s employees or agents are not authorised to make any representations
concerning the Goods unless confirmed by a Director of the Seller in Writing. In
entering into the Contract the Buyer acknowledges that it does not rely on, and waives
any claim for breach of, any such representations which are not so confirmed.
3.4. Any advice or recommendation given by the Seller or its employees or agents to
the Buyer or its employees or agents as to the storage, application or use of the Goods
which is not confirmed in Writing by a Director of the Seller is followed or acted upon
entirely at the Buyers own risk, and accordingly the Seller shall not be liable for any
such advice or recommendation which is not so confirmed. The Seller publishes
storage and handling information and the goods must be used in accordance with the
advice given in that. A copy is available upon request.
3.5. Any typographical, clerical or other error or omission in any sales literature,
quotation, price list, acceptance of offer, invoice or other document or information
issued by the Seller shall be subject to correction without any liability on the part of the
Seller.
3.6. All industrial or intellectual property rights of any nature whatsoever in the
Goods remain vested in the Seller at all times.
4. ORDERS AND SPECIFICATIONS
4.1. The Buyer shall be responsible to the Seller for ensuring the accuracy of the
terms of any order (including any applicable specification) submitted by the Buyer, and
for giving the Seller any necessary information relating to the Goods within a sufficient
time to enable the Seller to perform the Contract in accordance with its terms.
4.2. The quantity, quality and description of and any specification for the Goods shall
be those set out in the Seller’s acknowledgement of order.
4.3. If the Goods are to be manufactured or any process is to be applied to the Goods
by the Seller in accordance with a specification submitted by the Buyer, or utilising
tooling, software or other goods or equipment supplied by the Buyer, the Buyer shall
indemnify the Seller against all loss, damages, costs and expenses awarded against or
incurred by the Seller in connection with or paid or agreed to be paid by the Seller 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 the
Seller’s use of the Buyer’s specification or use of such tooling, software or other goods
or equipment.
4.4. The Seller reserves the right to make any changes in the specification of the
Goods which are required to conform with any applicable safety or other statutory
requirements or, where the Goods are to be supplied to the Seller’s specification, which
do not materially affect their quality or performance.
4.5. Save as set out in Clause below no order which has been accepted by the Seller
may be cancelled by the Buyer except with the agreement in Writing of the Seller and
on terms that the Buyer shall indemnify the Seller in full against all loss (including loss
of profit), costs (including the cost of all labour and materials used), damages, charges
and expenses incurred by the Seller as a result of cancellation.
5. PRICE OF THE GOODS
5.1. The price of the Goods shall be as per the Seller’s acknowledgement of order. All
prices quoted are valid for 30 days after which time they may be altered by the Seller on
giving notice to the Buyer.
5.2. The Seller reserves the right, by giving notice to the Buyer at any time before
delivery, to increase the price of the Goods to reflect any increase in the cost to the
Seller which is due to any factor beyond the control of the Seller (such as, without
limitation, any foreign exchange fluctuation, currency regulation, alteration of 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 which is requested
by the Buyer, or any delay caused by any instructions of the Buyer or failure of the
Buyer to give the Seller adequate information or instructions.
5.3. Except as otherwise stated under the terms of any quotation or in any price list of
the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all
prices are given by the Seller on an ex-works basis, and where the Seller agrees to
deliver the Goods, the Buyer shall be liable to pay the Seller’s charges for transport,
packaging and insurance.
5.4. The price is exclusive of any applicable value added tax, which the Buyer shall
be additionally liable to pay to the Seller.
5.5. The cost of pallets and returnable containers will be charged to the Buyer in
addition to the price of the Goods, but full credit will be given to the Buyer provided
they are returned undamaged to the Seller before the due payment date.
6. TERMS OF PAYMENT
6.1. The Seller shall be entitled to invoice the Buyer for the price of the Goods on or
at any time after delivery of the Goods, unless the Goods are to be collected by the
Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the
Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has
notified the Buyer that the Goods are ready for collection or (as the case may be) the
Seller has tendered delivery of the Goods.
6.2. The Buyer shall pay the price of the Goods within 30 days after the date of the
Seller’s invoice, and the payment of the price shall be of the essence of the Contract.
Receipts for payment will be issued only upon request. The Buyer shall not make any
deductions, set-offs or counterclaims against the invoice price.
6.3. If the Buyer fails to make any payment on the due date then, without prejudice to
any other right or remedy available to the Seller, the Seller shall be entitled to:
6.3.1. cancel the contract or suspend any further deliveries to the Buyer;
6.3.2. appropriate any payment made by the Buyer to such of the Goods (or the
goods supplied under any other contract between the Buyer and the Seller) as the
Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
6.3.3. exercise its rights to interest and compensation under the Late Payment of
Commercial Debts (Interest) Act 1998.
7. DELIVERY
7.1. Delivery of the Goods shall be made by the Buyer collecting the Goods at the
Seller’s premises at any time after the Seller has notified the Buyer that the Goods are
ready for collection or, if some other place for delivery is agreed by the Seller, by the
Seller delivering the Goods to that place.
7.2. Any dates quoted for delivery of the Goods are approximate only and the Seller
shall not be liable for any delay in delivery of the Goods howsoever caused. Time for
delivery shall not be of the essence unless previously agreed by the Seller in Writing.
The Goods may be delivered by the Seller in advance of the quoted delivery date upon
giving reasonable notice to the Buyer.
7.3. Where delivery of the Goods is to be made by the Seller in Bulk, the Seller
reserves the right to deliver up to 10 per cent more or 10 per cent less than the quantity
ordered without any adjustment in the price, and the quantity so delivered shall be
deemed to be the quantity ordered.
7.4. Where the Goods are to be delivered in instalments, each delivery shall constitute
a separate contract and failure by the Seller to deliver any one or more of the
instalments in accordance with these Conditions or any claim by the Buyer in respect of
any one or more instalments shall not entitle the Buyer to treat the Contract as a whole
as repudiated.
7.5. If the Seller fails to deliver the Goods for any reason other than any cause beyond
the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable
to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the
Buyer (in the cheapest available market) of similar goods to replace those not delivered
over the price of the Goods.
7.6. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate
delivery instructions at the time stated for delivery (otherwise than by reason of any
cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then,
without prejudice to any other right or remedy available to the Seller, the Seller may:
7.6.1. store the Goods until actual delivery and charge the Buyer for the reasonable
costs (including insurance) of storage; or
7.6.2. sell the Goods at the best price readily obtainable and (after deducting all
reasonable storage and selling expenses) account to the Buyer for the excess over the
price under the Contract or charge the Buyer for any shortfall below the price under
the Contract.
7.7. If delivery is delayed by industrial dispute or any circumstances beyond the
Seller’s control then the periods for delivery shall be extended by such a period as is
reasonable in the circumstances. Should any delay continue for a period exceeding six
months then, unless the parties agree to the contrary, the contract shall be deemed to be
terminated without any claim for compensation against the Seller.
8. RISK AND PROPERTY
8.1. Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1. in the case of Goods to be delivered at the Seller’s premises, at the time when
the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2. in the case of Goods to be delivered otherwise than at the Seller’s premises,
at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods,
the time when the Seller has tendered delivery of the Goods.
8.2. Notwithstanding delivery and the passing of risk in the Goods, or any other
provision of these Conditions, the title to the Goods shall not pass to the Buyer until the
Seller has received in cash or cleared funds payment in full of the price of the Goods
and all other goods purchased by the Buyer from the Seller, no matter whether
delivered, awaiting delivery, or awaiting collection.
8.3. Until such time as the title in the Goods passes to the Buyer, the Buyer shall
keep the Goods separate from those of the Buyer and third parties and properly stored,
protected and insured and identified as the Seller’s property.
8.4. Until such time as the title in the Goods passes to the Buyer, the Buyer shall be,
subject to the Seller informing the Buyer to the contrary, entitled to resell or use the
Goods in the ordinary course of its business, but shall account to the Seller for the
proceeds of sale or otherwise of the Goods, whether tangible or intangible, including
insurance proceeds, and shall keep all such proceeds separate from any moneys or
property of the Buyer and third parties and, in the case of tangible proceeds, properly
stored, protected and insured. The Buyer shall have no authority to enter into any
contract of sale on behalf of the Seller and any such contract shall accordingly be
concluded in the name of the Buyer.
8.5. Until such time as the title in the Goods passes to the Buyer (and provided the
Goods are still in existence and have not been resold), the Seller shall be entitled at any
time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to
do so forthwith, to enter upon any premises of the Buyer or any third party where the
Goods are stored and repossess the Goods.
8.6. The Buyer shall not be entitled to pledge or in any way charge by way of security
for any indebtedness any of the Goods which remain the property of the Seller, but if
the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice
to any other right or remedy of the Seller) forthwith become due and payable.
8.7. Save as otherwise stated therein, the provisions of this clause 8 shall survive the
termination of any contract made pursuant to these Conditions for whatever reason and
in particular but without limitations by the Seller by the acceptance or repudiation of
this Contract by the Buyer.
9. WARRANTIES AND LIABILITY
9.1. Subject to the conditions set out below the Seller warrants that the Goods will
correspond with their specification at the time of delivery and will be free from defects
in material and workmanship for a period of six months from the date of delivery to the
Buyer.
9.2. The above warranty is given by the Seller subject to the following conditions:
9.2.1. the Seller shall be under no liability in respect of any defect in the Goods
arising from any drawing, design or specification supplied by the Buyer
9.2.2. the Seller shall be under no liability in respect of any defect arising from fair
wear and tear, wilful damage, negligence, abnormal working conditions, failure to
follow the Seller’s instructions (whether oral or in Writing), misuse or alteration or
repair of the Goods without the Seller’s approval;
9.2.3. the Seller shall be under no liability under the above warranty (or any other
warranty, condition or guarantee) if the total price for the Goods has not been paid
by the due date for payment.
9.2.4. the above warranty does not extend to goods manufactured by third parties.
In respect of these the Buyer shall only be entitled to the benefit of any warranty or
guarantee given by the manufacturer to the Seller to the extent that the Seller is able
to pass this on to the Buyer.
9.3. The warranty at 9.1 replaces all warranties, conditions, innominate or other terms
implied by statute or common law, which are excluded to the fullest extent permitted by
law.
9.4. Any claim by the Buyer which is based on any defect in the quality or condition
of the Goods or their failure to correspond with specification shall (whether or not
delivery is refused by the Buyer) be notified to the Seller within three days from the
date of delivery or (where the defect or failure was not apparent on reasonable
inspection) within a reasonable time after discovery of the defect or failure. If the Buyer
does not notify the Seller accordingly, the Buyer shall not be entitled to reject the
Goods and the Seller shall have no liability for such defect or failure, and the Buyer
shall be bound to pay the price as if the Goods had been delivered in accordance with
the Contract.
9.5. In the event of a breach of warranty in Clause 9.1 the Seller shall be entitled to
repair or replace the Goods (or the part in question) free of charge or, at the Seller’s sole
discretion, refund to the Buyer the price of the Goods (or a proportionate part of the
price), but the Seller shall have no further liability to the Buyer.
9.6. Except in respect of death or personal injury caused by the Seller’s negligence or
fraudulent misrepresentation:
9.6.1. the Seller shall not be liable to the Buyer for any loss of profit or any
indirect, special or consequential loss or damage, costs, expenses or other claims for
consequential compensation whatsoever which arises out of or in connection with the
supply of the Goods or their use or resale by the Buyer, except as expressly provided
in these Conditions;
9.6.2. the Seller’s entire liability to the Buyer arising under or in connection with
these Conditions whether for negligence, breach of contract, or otherwise shall be no
more than the total price of the Goods
9.7. The Seller shall not be liable to the Buyer or be deemed to be in breach of these
Conditions by reason of any delay in performing, or any failure to perform, any of the
Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause
beyond the Seller’s reasonable control. Without prejudice to the generality of the
foregoing, the following shall be regarded as causes beyond the Seller’s reasonable
control:
9.7.1. act of God, explosion, flood, tempest, fire or accident;
9.7.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.7.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind
on the part of any governmental, parliamentary or local authority;
9.7.4. import or export regulations or embargoes;
9.7.5. strikes, lock-outs or other industrial actions or trade disputes (whether
involving employees of the Seller or of a third party);
9.7.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery; and
9.7.7. power failure or breakdown in machinery.
9.8. In the event that the Seller is prevented from carrying out its obligations under
this Contract, in accordance with clause 9.7above, the Seller shall give notice of
suspension as soon as is reasonably possible to the Buyer stating the date and the extent
of the suspension and its cause. The Seller shall resume the performance of its
obligations as soon as reasonably possible after the removal of the cause and shall so
notify the Buyer. In the event that the cause continues for more than one month either
party may terminate this Contract by giving the other party 30 days’ prior written
notice.
10. INSOLVENCY OF BUYER
10.1. This clause applies if:
10.1.1. the Buyer makes any voluntary arrangement with its creditors or becomes
subject to an administration order or (being an individual or firm) becomes bankrupt
or (being a company) goes into liquidation (otherwise than for the purposes of
amalgamation or reconstruction); or
10.1.2. an encumbrancer takes possession, or a receiver is appointed, over any of the
property or assets of the Buyer; or
10.1.3. the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4. the Seller reasonably apprehends that any of the events mentioned above is
about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2. If this clause applies then, notwithstanding any other rights available to the
Seller, the Seller may be entitled to cancel the Contract or suspend any deliveries
without any liability to the Buyer, and if the Goods have been delivered but not paid for
the price shall become immediately payable regardless of any previous agreement to the
contrary and the Buyer’s right to resell the Goods set out in clause 7.3 above will
automatically be revoked.
11. TERMINATION
Either party may (without limiting any other remedy) at any time terminate the Contract
by giving written notice to the other if the other commits any breach of these conditions
and (if capable of remedy) fails to remedy the breach within 30 days after being
required by written notice to do so.
12. EXPORT TERMS
12.1. In this clause 12 ‘Incoterms’ means the international rules for the interpretation
of trade terms of the International Chamber of Commerce as in force at the date when
the Contract is made. 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.
12.2. Where the Goods are supplied for export from the United Kingdom, the
provisions of this clause 12 shall (subject to any special terms agreed in Writing
between the Buyer and the Seller) apply notwithstanding any other provision of these
Conditions.
12.3. 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 thereon.
12.4. Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods
shall be delivered ex works.
12.5. The Buyer shall be responsible for arranging for testing and inspection of the
Goods at the Seller’s premises before shipment. The Seller 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.
13. GENERAL
13.1. Any notice required or permitted to be given by either party to the other under
these Conditions shall be in Writing addressed to that other party at its registered office
or principal place of business or such other address as may at the relevant time have
been notified pursuant to this provision to the party giving the notice. A notice is
deemed to have been served as follows:-
13.1.1. if personally by facsimile or E-mail, at the time of delivery;
13.1.2. if posted, at the time of expiration of 48 hours or (in the case of airmail) 7
days after the envelope containing the notice is posted.
13.2. Unless specifically stated to the contrary no failure or delay by either party in
exercising any of its rights under these Conditions shall be deemed to be a waiver of
that right, and no waiver by either party of any breach of these Conditions shall be
considered as a waiver of any subsequent breach of the same or any other provision.
13.3. If any provision of these Conditions is held by any competent authority to be
invalid or unenforceable in whole or in part the validity of the other provisions of these
Conditions and the remainder of the provisions in question shall not be affected.
13.4. A person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does
not affect any right or remedy of a third party which exists or is available apart from
that Act.
13.5. The Contract shall be governed by the laws of England, and the parties hereby
submit to the exclusive jurisdiction of the English Courts for all purposes arising in
connection with the Contract.
13.6. These Conditions, and the documents referred to in them, constitute the entire
agreement and understanding of the parties and supersede any previous agreement
between the parties relating to the subject matter of this Contract. Each of the parties
acknowledges and agrees that in entering into this Contract, and the documents referred
to in it, it does not rely on, and shall have no remedy in respect of, any statement,
representation, warranty or understanding (whether negligently or innocently made) of
any person (whether party to this agreement or not) other than as expressly set out in
this Contract. The only remedy available to it for breach of any warranty shall be for
breach of contract under the terms of these Conditions. Nothing in this sub-clause shall,
however, operate to limit or exclude any liability for fraud.
13.7. The Buyer shall not without the prior written consent of the Seller assign,
transfer, charge, declare a trust over or deal in this Contract or its rights under it or part
of it, or purport to do any of the same.
END
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