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Standard Terms and Conditions of Business of Daxos Ltd
1. Status of Terms and Conditions
1.1. These standard terms and conditions ("The Conditions") shall apply to all
contracts for goods and services between Daxos Limited ("The Company") and any
person or Company who accepts the quotations for the goods which the Company is
to supply in accordance with these conditions ("The Buyer"). In the case of any
inconsistency with any order, letter or form of contract sent by the Buyer and
the Company or any other communication between the Buyer and the Company (what
ever may be their respective dates) the provisions of the Terms and Conditions
shall prevail unless expressly varied in writing and, in the case of the
Company, signed by a director thereof.
1.2. No statement, description, information, warranty, condition or
recommendation contained in any price-list, advertisement, documentation or
communication or made verbally be any of the agents or employees of the Company
shall be construed so as to extend, vary or override any provision of this
Contract in any way.
2. Definitions In these Conditions the following expressions shall the have
the meanings ascribed to them below:
2.1. "The Company" means Daxos Limited.
2.2. "The Buyer" means the legal entity with whom the Contract is made by the
Company.
2.3. "The Goods" means any goods supplied by the Company to the Purchaser in
accordance with the order confirmation of the Company which is accepted by the
Buyer or any written order of the Buyer which is accepted by the Company.
2.4. "The Company's Premises" means the premises of the Company at 2 Whiting
Street Sheffield S8 9QR.
2.5. "The Delivery Date" means the date that the Goods are collected by the
Buyer from the Company's Premises or other address specified by the Company, or
the date of delivery of the Goods, whichever is applicable.
2.6. "The Contract" means the contract between the Company and the Buyer for
the supply and/or rental of the Goods.
2.7. In writing includes telex, cable, letter, facsimile or e-mail transmission
or Comparable means of communication.
2.8. The headings in these conditions are for convenience and shall not affect
their Interpretation.
3. Basis of the sale.
3.1. The Company shall sell and the Buyer shall buy the Goods subject
in either case to the Conditions, which shall govern the Contract to the
exclusion of any other items and conditions.
3.2. No variation of these conditions shall be binding unless agreed in Writing
Between the authorised representatives of the Buyer and the Company.
3.3. The Company's employees or agents are not authorised to make any
Representation unless confirmed by the Company in writing. In entering into the
contract the Buyer acknowledges that is does not rely on any such
representations which are not so given.
3.4. Any recommendations by the Company or its employees or its agents to the
Buyer or its employees or it agents as to the storage, application or use of
the Goods which is not confirmed in writing by the Company is followed or acted
on by the Buyer is at the Buyers own risk.
3.5. Any typographical, clerical or other error or omission in any literature,
quotation, price list, acceptance of offer, invoice or other document or
information issued by the Company shall be subject to correction without
liability on the part of the Company.
4. Orders and specifications.
4.1. No order submitted by the Buyer shall be deemed to be accepted by the
Company unless and until confirmed in writing (could be by electronic means) by
the Company or authorised representative.
4.2. The Buyer shall be responsible to the Company for ensuring the accuracy of
the terms of any order (including any applicable specifications) submitted by
the Buyer, and for giving the Company any necessary information relating to the
Goods.
4.3. The quantity, quality and description of and any specification for the
Goods Shall be those set out in the Company's quotation (if accepted) or the
Buyers order (if accepted by the Company).
4.4. If the Goods are to be manufactured or any process is to be
supplied(clarify) to the Goods by the Company in accordance with a
specification by the Buyer, the Buyer shall indemnify the Company against all
loss, damages, cost and expenses awarded against or incurred by the Company in
connection with or paid or agreed to be paid by the Company 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 Company's use of the Buyers specification.
4.5. The Company reserves the right to make any changes in the specification of
the Goods which are required to conform with any applicable or statutory or EC
requirements or, where the Goods are to be supplied to the Company's
Specification, which do not materially affect their quality or performance.
4.6. No order which has been accepted by the Company may be cancelled by the
Buyer except with the agreement in Writing of the Company and on terms that the
Buyer shall Indemnify the Company in full against all loss (including loss of
profit), costs (including the costs of all labour and materials used), damages,
charges and expenses incurred by the Company as a result of cancellation.
5. Price of the Goods.
5.1. The price of the goods shall be Company's quoted price contained in the
order confirmation and except as otherwise stated under the terms of any
quotation or in any price list of the Company, and unless otherwise agreed in
Writing between the Buyer and the Company, all prices are given by the Company
on a ex works basis, and where the Company agrees to deliver the Goods
otherwise than at the Company's premises, the buyer shall be liable to pay the
company's charges for transport, packaging and insurance.
5.2. All prices quoted for by the Company, for specific Goods to be
manufactured to the Buyers specification, are valid for 30 days and if accepted
in writing shall not be cancelled.
5.3. All prices are exclusive of any applicable value added tax, which the
Buyer, shall be additionally liable to pay to the Company.
6. Terms of payment.
6.1. The Company does not grant credit facilities automatically. Should the
Company grant the Buyer credit facilities, payment of all charges shall be made
strictly within 30 days of the invoice date. If the Buyer does not have a
credit account then payment is to be made with order or on receipt of a
pro-forma invoice.
6.2. Payment in full shall be due to the Company and the Buyer shall not be
entitled to exercise any set-off, lien or any other similar right or claim.
6.3. The time of payment shall be of the essence of the Contract.
6.4. The Company reserves the right to withdraw credit facilities at any time
and without notice.
6.5. Without prejudice to any other rights it may have the Company is entitled
to charge interest a the rate of 10% above the then prevailing Base Lending
Rate of Lloyds Bank plc on all rental charges and other payments which are
overdue, such interest to run from the due date for payment until the date when
payment in full is received, whether before or after judgement has been
obtained.
6.6. All Goods shall remain the property of the Company until full balance
including delivery and Vat charges for the goods are received from the Buyer.
7. Delivery.
7.1. Any dates quoted for delivery of the Goods are approximate only and the
Company 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 Company in writing although the following delivery guidelines will
normally apply following receipt of the Order Confirmation.
7.2. If the Company fails to deliver the Goods for any reason other than any
cause beyond the Company's reasonable control or the Buyer's fault, and the
Company is accordingly liable to the buyer, the company'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.
7.3. If the Buyer fails to take delivery of the Goods or fails to give the
Company adequate delivery instructions at the time stated for delivery
(otherwise that by reason of any cause beyond the Buyers reasonable control or
by reason of the Company's fault) then without prejudice to any other right or
remedy available to the Company, the Company may.
7.3.1. store the Goods until actual delivery and charge the Buyer for the
reasonable costs (including insurance) of storage; or
7.3.2. sell the Goods at the best price readily obtainable and (after deduction
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.
8. Risk and property.
8.1. Risk or damage to or loss of the Goods shall pass to the Buyer,
immediately upon the Goods leaving the Company's premises or price of storage
for shipment to the Buyer. The Company is not responsible for damage or
shortages that occur in transit.
8.2. Notwithstanding delivery and the passing or risk in the Goods, or any
other provision of these Conditions, the property in the Goods shall not pass
to the Buyer until the Company has received in cash or cleared funds payment in
full of the price of the Goods and all other goods agreed to be sold by the
Company to the Buyer for which payment is then due.
8.3. Until such time as the property in the Goods passes to the Buyer, the
Buyer shall hold the Goods as the Company's judiciary agent and bailee, and
shall keep the Goods separate from those of the Buyer and third parties and
properly stored, protected and insured and identified as the Company's
property. Until the time that the Buyer shall be entitled to resell or use the
Goods in the ordinary course of its business, but shall account to the Company
for the proceeds of sale or otherwise of the Goods, whether tangible or
intangible including insurance proceeds, and shall keep all cash 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.
8.4. Until such time as the property in the Goods passes to the Buyer (and
provided the Goods are still in existence and have not been resold), the
Company shall be entitled at any time to required the Buyer to delivery up the
Goods to the Company 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,
protected and insured.
8.5. The Buyer shall not be entitled to pledge or in any way change by way of
security for any indebtedness any of the Goods which remain the property of the
Company but if the Buyer does so all moneys owing by the buyer to the Company
shall (without prejudice to any other right or remedy of the Company) forthwith
become due and payable.
9. Warranties, liability and Guarantee.
9.1. The Buyer expressly acknowledges that the Company is not the original
manufacturer or supplier of the Equipment, and that the Equipment has been
selected by the Company as suitable for its purpose. The Buyer accordingly
agrees and acknowledges that all conditions, warranties or representations
whether express or implied or statutory or otherwise in respect of the
Equipment or its fitness for any particular purpose are hereby expressly
excluded.
9.2. Subject to the Conditions set out below the Company 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 twelve months
from the date of their initial use of twelve months from delivery, whichever is
the first to expire.
9.3. The above warranty is given by the Company subject to the following
conditions:
9.3.1. the Company shall be under no liability in respect of any defect arising
from fair wear and tear, willful damage, negligence, abnormal working
conditions, failure to follow the Company's instructions (whether oral or in
writing), misuse or alteration or repair of the Goods without he Company's
approval.
9.3.2. the Company shall be under no liability under the above warranty, (or
any other condition or guarantee) if the total price for the Goods has not been
paid by the due day for payment.
9.4. Subject as expressly provided in these Conditions, and except where the
Goods are sold to a person dealing as a consumer (within the remaining of the
Unfair Contract Terms Act 1977), all warranties conditions or other terms
implied by statute or common law are excluded to the fullest extent permitted
by law.
9.5. Where the Goods are sold under a consumer transaction (as defined by the
Consumer Transactions Restrictions on Statements Order 1976) the statutory
rights of the Buyer are not affected by the Conditions.
9.6. 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 specifications shall
(whether or not delivery is refused by the Buyer) be notified to the Company
with 48 hours 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 of failure. If delivery is not refused, the Buyer does not notify
the Company accordingly the Buyer shall not be entitled to reject the Goods and
the Company shall have liability for such defect or failure, and the Buyer
shall be bound to pay the price as if the Goods have been delivered in
accordance with the Contract. (Valid claims are based strictly on following our
Complaints Procedure).
9.7. Where any valid claim in respect of any of the Goods which is based on the
any defect in the quality or condition of the Goods or their failure to meet
specifications is notified to the Company in accordance with the Conditions,
the Company shall be entitled to replace or correct the Goods (or part in
question) free of charge by the Company shall have no further liability to the
Buyer. Please see our Complaints Procedure which is available on request.
9.8. Except in respect of death or personal injury caused by the Company's
negligence, the Company shall not be liable to the Buyer by reason of any
representation or any implied warranty, condition or other terms or any duty at
common law or under the express terms of the Contract for any consequential
loss or damage (ether for loss or profit or otherwise), costs, expenses or
other claims for consequential compensation whatsoever (and whether caused by
the negligence of the Company, its employees or agents or otherwise) which
arise 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.
9.9. The Company shall not be liable to the Buyer or be deemed to be in breach
of the Contract by reason of any delay in performing, or any failure to
perform, any of the Company's obligations in relation to the Goods, if the
delay or failure was due to any cause beyond the Company's reasonable control.
10. Indemnity.
10.1 If any claim is made against the Buyer that the goods infringe or
that their use or resale infringes the patent, copyright, design, trade mark or
other industrial or intellectual property rights or any person, then unless the
claim arises from the use of any drawing, design or specification supplied by
the Buyer the Company shall indemnify the Buyer against all loss, damages and
expenses awarded against or incurred by the Buyer in connection with the claim,
or paid or agreed to be paid in settlement of the claim provided that:
10.1.1 the Company is given full control of any proceedings or negotiations in
connection with such claim.
10.1.2 the Buyer shall give the Company all reasonable assistance for the
purpose of any such proceedings or negotiations.
10.1.3 except pursuant to a final award, the Buyer shall not pay or accept any
such claim, or compromise any such proceedings without the consent of the
Company( which shall not be unreasonably withheld).
10.1.4.the Company shall be entitled to the benefit of, ant he Buyer shall
accordingly account to the Company for, all damages and costs (if any) awarded
in favour of the Buyer which are payable by or agreed with the consent of the
buyer ( which consent shall not be unreasonably withheld) to be paid by any
other party in respect of any such claim And
10.1.5 without prejudice to any duty to the Buyer at common law, the Company
shall be entitled to require the Buyer to take such steps as the Company may be
reasonably require to mitigate or reduce any such loss, damages, costs or
expenses for which the Company is liable to indemnify the Buyer under this
clause.
11. Insolvency of the Buyer.
11.1. This clause applies if:
11.1.1. the Buyer makes any voluntary agreement 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
11.1.2. an incumbent takes possession, or a receiver is appointed, of any of
the property or assets of the Buyer; or
11.1.3. the Buyer causes, or threatens to cease, to carry on business; or
11.1.4. the Company reasonably apprehends that any of the events mentioned
above is about to occur in relation to the Buyer accordingly.
11.2. If this clause applies then, without prejudice to any other right or
remedy available to the Company, the Company shall be entitled to cancel the
Contract or suspend any further deliveries under the Contract without any
liability to the Company, and if the Goods have been delivered but not paid for
the price shall become immediately due and payable notwithstanding an y
previous agreement or arrangement to the contrary.
12. General.
12.1. The Company shall be entitled to delay or cancel delivery or to reduce
the amount delivered if it is prevented from or hindered in or delayed in
obtaining or delivering the Equipment by the normal route or means of delivery
through any circumstances beyond it control including but not limited to
strikes, lockouts or any other form of industrial action, accidents, war, fire,
reduction in or unavailability of power at manufacturing plant, breakdown of
machinery or shortage or unavailability or raw materials or labour from normal
sources of supply.
13. Notices.
13.1. Any notices to be given by either party to the other shall be in writing
and may be served either by delivering by hand or sending it by first class
post or facsimile transmission(email?) in the case of the Company to the
Company's Premises. Service by delivery by hand shall be deemed to be effected
upon delivery to the relevant address, service by first class post 3 days
following the date of posting and service by facsimile transmission upon
transmission of the relevant communication.
13.2. 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 part at the
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 part
giving the notice.
13.3. No waiver by the company or any breach of the Contract by the Buyer shall
be considered as a waiver of any subsequent breached of the same or any other
provision.
13.4. If any provision of these Conditions is held by any competent authority
to be invalid or unenforceable to whole or in part of the validity of the other
provisions of these Conditions and the remainder of the provisions in question
shall be affected thereby.
13.5. The Contract shall be governed by the laws of England.
14. Joint and Several Liability.
14.1. Where two or more persons are a party to the Contract as the Buyer the
liability or such persons shall be joint and several.
15. Proper Law.
15.1. The Contract shall be governed by and construed in accordance
with English Law.
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