GENERAL TERMS AND CONDITIONS OF SALE
These terms of business set out the basis on which Diamond Point International (Europe) Ltd (DPIE) of Suite 13 Ashford House, Beaufort Court, Sir Thomas Longley Rd, Rochester, Kent ME2 4FA (Co.No.02168609) will supply certain Goods and (if applicable) Services to the Customer.
In these Conditions, the following definitions apply:
- Conditions: these terms and conditions as amended from time to time in accordance with clause 14.4.
- Contract: the contract between DPIE and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
- Customer: the person or firm who purchases the Goods and/or Services from DPIE.
- Deliverables: the deliverables to be provided by DPIE as set out in the Specification.
- DPIE Materials: any and all materials, equipment, documents and other property of DPIE, in whatever form.
- Goods: the goods (or any part of them) set out in the Order.
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's written acceptance of DPIE’s quotation.
- Services: the services supplied by DPIE to the Customer as set out in the Specification. Specification: the description or specification for the Services provided in writing by DPIE to the Customer.
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 trade, custom, practice or course of dealing.
- 2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer will ensure that the terms of the Order are complete and accurate.
- 2.3 The Order shall only be deemed to be accepted on the earlier of:
- 2.3.1 DPIE issuing a written acceptance of the Order; and
- 2.3.2 DPIE dispatching the Goods, at which point the Contract shall come into existence.
- 2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of DPIE which is not set out in the Contract.
- 2.5 Any samples, drawings, descriptive matter or advertising issued by DPIE and any descriptions of the Goods or illustrations or descriptions of the Services contained in DPIE’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
- 2.6 A quotation for the Goods and/or Services given by DPIE shall not constitute an offer. A quotation shall only be valid for a period of 30 days.
- 2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3 CANCELLATION OF GOODS
- 3.1 Subject always to clause 3.2 and the remainder of this clause 3.1, the Customer will be entitled to cancel an Order (in respect of the Goods only) by giving DPIE notice in writing at any time prior to the Goods being dispatched. If an Order is cancelled prior to dispatch of the Goods:
- 3.1.1 within 7 days of the Order date DPIE will be entitled to charge a cancellation fee of £75 plus VAT;
- 3.1.2 more than 7 days after the Order date, DPIE will be entitled to charge the Customer a cancellation fee equal to 50% of the Order value (of the Goods); and/or
- 3.1.3 14 days (or less) prior to delivery, DPIE will be entitled to charge a cancellation fee equal to 100% of the Order value (of the Goods).
- 3.2 Orders for non-standard Goods, custom built Goods and/or end-of-life Goods cannot be cancelled by the Customer once the Order has been placed.
4 DELIVERY AND INSPECTION
- 4.1 DPIE will deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location).
- 4.2 Delivery of the Goods will be completed on the Goods arrival at the Delivery Location.
- 4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
- 4.4 DPIE may deliver the Goods by instalments, which will be invoiced and paid for separately. Each instalment will constitute a separate Contract. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
- 4.5 Notwithstanding clause 5, the Customer will be responsible for inspecting the Goods upon delivery and will notify DPIE if there is any damage, discrepancy, non-delivery or shortage within 7 days of delivery.
5 WARRANTY FOR THE GOODS
- 5.1 DPIE warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods will:
- 5.1.1 conform in all material respects with their description;
- 5.1.2 be free from material defects in design, material and workmanship; and
- 5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
- 5.2 Subject to clause 5.3, if:
- 5.2.1 the Customer gives notice in writing to DPIE 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; 5.2.2 DPIE is given a reasonable opportunity of examining such Goods; and
- 5.2.3 the Customer (if asked to do so by DPIE) returns such Goods to DPIE’s place of business at the Customer's cost, DPIE will, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
- 5.3 DPIE will not be liable for Goods' failure to comply with the warranty set out in clause 5.1 if:
- 5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
- 5.3.2 the defect arises because the Customer failed to follow DPIE's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice;
- 5.3.3 the Customer alters or repairs such Goods without the prior written consent of DPIE; or
- 5.3.4 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, DPIE will 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 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- 5.6 These Conditions will apply to any repaired or replacement Goods supplied by DPIE, save that the Warranty Period shall not be extended in respect of such Goods, and will continue to run from the original date of delivery.
6 TITLE AND RISK
- 6.1 The risk in the Goods will pass to the Customer upon completion of delivery.
- 6.2 Title to the Goods will not pass to the Customer until DPIE has received payment in full (in cash or cleared funds) for:
- 6.2.1 the Goods; and
- 6.2.2 all other sums which are or which become due to DPIE for sales of the Goods or any other products to the Customer.
- 6.3 Until title to the Goods has passed to the Customer, the Customer will:
- 6.3.1 hold the Goods on a fiduciary basis as DPIE's bailee;
- 6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as DPIE's property;
- 6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- 6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- 6.3.5 notify DPIE immediately if it becomes unable to meet its debts or ceases to carry on business; and
- 6.3.6 give DPIE such information relating to the Goods as DPIE may require, but the Customer may resell or use the Goods in the ordinary course of its business.
- 6.4 If before title to the Goods passes to the Customer the Customer becomes unable to meet its debts or ceases to carry on business, or DPIE reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy DPIE may have, DPIE may at any time require the Customer to deliver up the Goods 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 SUPPLY OF SERVICES
- 7.1 DPIE shall provide the Services and the Deliverables to the Customer in accordance with the Specification in all material respects.
- 7.2 DPIE shall use all reasonable endeavours to meet any performance dates for the Services specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- 7.3 DPIE shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and DPIE shall notify the Customer in any such event.
- 7.4 DPIE warrants to the Customer that the Services will be provided using reasonable care and skill.
8 INTELLECTUAL PROPERTY
- 8.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by DPIE.
- 8.2 Subject to payment by the Customer of all applicable charges, DPIE licenses such Intellectual Property Rights to the Customer, on a non-exclusive, non-transferrable, nonsublicensable, personal basis to such extent as is strictly necessary to enable the Customer to make reasonable use of (but not to reverse engineer, dismantle or otherwise take apart) the Deliverables and the Services.
- 8.3 All DPIE Materials are the exclusive property of DPIE.
9 NON-RECURRING ENGINEERING (NRE) CHARGE
- 9.1 Any NRE charge issued by DPIE to the Customer in connection with the Contract will be at the absolute discretion of DPIE (acting reasonably) and is in addition to any other amounts due from the Customer under the Contract.
- 9.2 Any NRE charge will be included in the quotation provided by DPIE to the Customer and is payable in advance of any Goods being delivered and/or Services being performed by DPIE.
- 9.3 Except as otherwise set out in the Contract, payment of any NRE charge by the Customer under the Contract shall not constitute an assignment of any Intellectual Property Rights (or otherwise confer any rights) in the Deliverables or the Services to (or on) the Customer.
10 PRICE AND PAYMENT
- 10.1 The price of the Goods and/or Services will be the price set out in the Order, or, if no price is quoted:
- 10.1.1 in respect of the Goods, the price shall be as set out in DPIE's published price list in force as at the date of delivery; and
- 10.1.2 in respect of the Services, the charges shall be on a time materials basis calculated in accordance with DPIE’s standard rates as notified to the Customer from time to time.
- 10.2 The price of the Goods is exclusive of the costs and charges for packaging, insurance and transport which will be charged at DPIE's standard rates as notified to the Customer from time to time.
- 10.3 The Customer will pay each invoice submitted by DPIE in full and in cleared funds within 30 days of the date of invoice. Payment will be made to the bank account nominated in writing by DPIE. Time of payment is of the essence.
- 10.4 The price of the Goods and Services is exclusive of value added tax (VAT) and any taxes, duties or levies charged on or in relation to the Goods and/or the Services, which the Customer shall pay in addition.
- 10.5 If the Customer fails to make any payment due to DPIE under the Contract by the due date for payment, then the Customer will pay interest on the overdue amount at the rate of 4% per year above the base rate of Barclays Bank Plc from time to time. Such interest will accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
- 10.6 The Customer will pay all amounts due under the Contract in full without any deduction or withholding except as required by law.
11 CUSTOMER'S INSOLVENCY
- If the Customer becomes unable to meet its debts or ceases to carry on business, or if DPIE reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, without limiting any other right or remedy available to DPIE, DPIE may cancel or suspend all further deliveries of Goods and/or Services under the Contract or under any other contract between the Customer and DPIE without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered, and/or Services provided, to the Customer will become immediately due.
12 LIMITATION OF LIABILITY
- 12.1 Nothing in these Conditions will limit or exclude DPIE's liability for:
- 12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- 12.1.2 fraud or fraudulent misrepresentation; or
- 12.1.3 breach of terms implied by section 12 of the Sale of Goods Act 1979.
- 12.2 Subject to clause 12.1:
- 12.2.1 DPIE will not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract; and
- 12.2.2 DPIE's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will not exceed 50% of the charges paid by the Customer in respect of the Goods and/or Service (as applicable).
13 FORCE MAJEURE
- DPIE will not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a parts reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including without limitation strikes or other industrial disputes, failure of energy sources, acts of God, terrorism, malicious damage, breakdown of plant or machinery, collapse of building structures, extreme adverse weather conditions, or default of suppliers or subcontractors.
- 14.1 Assignment and subcontracting. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of DPIE.
- 14.2 Severance. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract will not be affected.
- 14.3 Third party rights. A person who is not a party to the Contract will not have any rights under or in connection with it.
- 14.4 Variation. Any variation to the Contract will only be binding when agreed in writing and signed by DPIE.
- 14.5 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.