In these conditions: – the “Company”, “we” or “us” means DMD 2000 Limited (Co. No. SC209826). The “Customer” means the person, firm or company who purchases the Goods from the Company. The “Contract” means the contract between the Company and the Customer for the manufacture and supply of the Goods in accordance with these terms and conditions. The “Goods” are as set out in the Customer’s Order. The “Order” means the Customer’s order for Goods as set out in the Customer’s purchase order form or in the Customer’s written acceptance of the Company’s quotation. The “Specification” means the Customer’s detailed requirements which form part of an Order.
The Order constitutes an offer by the Customer to purchase the Goods and the Order shall only be deemed accepted when we issue a written acceptance of the Order, at which point the Contract shall come into existence. The Contract constitutes the entire agreement between the parties. Any samples, drawings or plans issued by us shall not form part of the Contract. We conduct business only on the following terms and conditions and no variation or replacement that the Customer seeks to impose or incorporate or which are implied by trade, custom, procedure or course of dealing shall be binding on us unless specifically agreed in writing and signed by one of our directors.
3. QUOTATIONS, SPECIFICATIONS AND PRICES
3.1 The Customer shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
3.2 Unless otherwise expressly stated, all prices quoted by us for Goods are based on the Specification and the current cost of production and materials, are valid for 30 days from the date of the quotation, and shall be inclusive of delivery costs.
3.3 All prices quoted are exclusive of VAT, which shall be for the account of the Customer.
3.4 The Company may, by giving notice to the Customer at any time prior to delivery, increase the price charged for the Goods to reflect any increase in the costs of materials or manufacturing incurred in the performance of the Contract, or as result of variation from the agreed Specification.
4. CUSTOMER’S GOODS
Except where it is otherwise specifically agreed, all goods in which the Customer has ownership rights (“Customer’s Goods”) which are sent to our premises shall remain entirely at the Customer’s risk at all times and in all respects including transport to and from our premises and whilst held on our premises, and we accept no liability for any loss of or damage in relation to the Customer’s Goods however arising. The Customer shall arrange for insurance cover for the Customer’s Goods.
5. DELIVERY AND DESPATCH
5.1 Any and all lead times we quote for delivery shall begin only from the date of receipt by us of all of the following: (i) a written order to proceed; (ii) the Customer’s Goods to be packed; (iii) all necessary packaging materials; and (iv) all necessary information and drawings or Specifications for that purpose. All times are estimates only and time for delivery of Goods shall not be of the essence of the Contract unless otherwise agreed by us in writing.
5.2 Delivery of the Goods shall be completed on the Goods being loaded onto a carrier’s vehicle, or if we act as the carrier, immediately upon the commencement of the unloading of the Goods at the destination specified in the Order.
5.3 We shall not be liable for any delay in the delivery of Goods that is caused by any failure or defect in any one delivery of Customer’s Goods to us and such failure or defect shall not permit the abrogation of the Contract as to any remaining deliveries of Customer’s Goods to us.
5.4 We have the right to revise the agreed delivery date or dates prior to manufacture if circumstances beyond our reasonable control prevent us from keeping to the originally agreed date or dates or scheduled deliveries.
6.1 We warrant that on delivery the Goods shall conform in all material respects with their description and any applicable Specification and will be free from material defects in design, material and workmanship. Except as provided for 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.
6.2 If the Customer gives notice in writing to us within a reasonable time of discovery that some or all of the Goods do not comply with the warranty in condition 6.1, and we are given a reasonable opportunity of examining such Goods, we shall at our discretion either repair or replace the defective Goods (or part thereof) or refund the price of the defective Goods (or part thereof).
6.3 Except as provided in this condition, we shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty in condition 6.1.
7. CANCELLATION CHARGES
Orders accepted by us cannot be cancelled by the Customer except where our written agreement is provided. Where an order is cancelled, the Customer shall keep us indemnified in full and hold us harmless against all loss (including, without limitation, loss of profit), costs (including, without limitation, the cost of all labour and materials used), damages, charges and expenses incurred by us as a result of cancellation.
8. PAYMENT TERMS
8.1 We may invoice the Customer for the Goods on or at any time after the completion of delivery. The Customer shall pay the invoice in full within 30 days from the end of the month following the month the invoice was dated. Time for payment shall be of the essence.
8.2 If payment is not made in accordance with this condition in addition to our other rights we reserve the right to charge interest at a rate of 4% above the base lending rate of Natwest Bank Plc, on any amounts overdue.
9. PASSING OF RISK AND RETENTION OF TITLE
9.1 Risk in the Goods shall pass to the Customer on completion of delivery.
9.2 Notwithstanding delivery and passing of risk in any Goods supplied, the property in the Goods shall not pass to the Customer until we have received in cash or cleared funds payment in full of the price of such Goods and all other goods agreed to be sold by us to the Customer for which payment is then overdue.
We shall have a lien upon all Goods and Customer’s Goods in our possession in respect of amounts due and owing by the Customer to us. We shall have the right to sell or otherwise dispose of any such Goods and Customer’s Goods on the expiry of six calendar months from the date on which amounts owing for Goods become due and payable in accordance with condition 8, and we shall have the right to charge for the storage of all such Goods and Customer’s Goods until they are removed or we dispose of them. We shall before such sale or disposal give the Customer no less than 14 days written notice of our intention to sell or dispose of the Goods and/or Customer’s Goods. We shall be entitled to retain the proceeds of sale of the Goods and Customer’s Goods to the extent of the amount owing by the Customer both in respect of any work carried out for that Customer and in respect of any storage charges and costs of disposal of such Goods and Customer’s Goods.
11. LIMITATION OF LIABILITY
11.1 Our liability in respect of loss or damage resulting from any defect in Goods supplied and/or failure of packaging carried out, shall be limited to and shall not exceed the price payable by the Customer under the Contract.
11.2 Subject to condition 11.1, the Customer waives any and all remedies which may otherwise exist against us, whether in contract or in tort, or otherwise in respect of loss or damage of any and every kind (including without limitation any economic loss, loss of profit, loss of opportunity, loss of use, or loss of goodwill), to whomsoever caused and in respect of anything done or omitted in connection with the provision of goods or services under the contract, or defending or giving evidence at legal proceedings and every other loss or damage which the Customer may sustain. Any express or implied statement, condition or warranty (statutory or otherwise) not stated herein is hereby excluded to the extent allowed by law. We do not accept responsibility for any loss or damage or loss arising directly or indirectly out of Goods supplied or for any damage or loss arising by reason of any failure of the Goods to comply with the Specification or with statutory requirements.
11.3 The Customer shall insure against and shall keep us fully indemnified against any claims under the Consumer Protection Act 1987.
11.4 Nothing in these conditions shall exclude or limit the Company’s liability (if any) to the Customer for: (i) death or personal injury caused by the Company’s negligence; or (ii) breach of the Company’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982; or (iii) any liability which is due to the Company’s fraud; or (iv) any other liability which it is not permitted to exclude or limit as a matter of law.
12. PATENTS, TRADE MARKS AND REGISTERED DESIGNS
The Customer shall indemnify us in respect of all liability resulting from any defamation passing off, or infringement of any patent, trade mark, registered design or other industrial or intellectual property right related to or arising out of the Customer’s Goods or Specification or by the packaging or otherwise howsoever arising. Such indemnity shall extend to the use by us of any packaging process to which we may subject the Customer’s Goods if such process shall have been specified or approved by the Customer. Such indemnity shall include, without limitation, any economic or other loss or damage, loss of use, loss of goodwill, loss of opportunity, loss of profits, and all costs and expenses incurred in connection with defending or giving evidence at legal proceedings and every other loss or damage which we may sustain.
13. CUSTOMER’S REQUIREMENTS, PRINTING AND CONSTRUCTION
Any alterations from the original copy provided by us and/or after the first approved proof (including alterations in style or construction) shall be subject to additional charges. Proofs of all work may be submitted for the Customer’s approval and we accept no responsibility for any errors in proofs which the Customer may have approved. The Customer shall be solely responsible for any matter which we print on the Goods on its instructions and/or for any design or construction which we execute on the instruction of, or at the request of the Customer, whether the goods shall have been supplied by us or by the Customer, and the Customer is solely responsible for any claim or proceedings made or brought by a third party arising therefrom.
14. FORCE MAJEURE
The performance of the Contract is subject to variation or cancellation by us owing to any act of god, war, strikes, lockouts , fire, flood, drought, tempest, failure of energy sources, breakdown of plant or machinery, or any other cause beyond our reasonable control or owing to the default of suppliers or subcontractors resulting in the inability by us to procure materials or articles required for the performance of the Contract and we shall not be held responsible for any inability to produce and/or deliver caused by any such contingency.
15.1 Unless otherwise agreed by us in writing, in all circumstances legal title in the tooling shall remain with us. All tooling quoted for shall be paid for in full by the Customer and be held at the Customer’s risk at our premises. Any repair, modification or replacement of tooling will be carried out at the Customer’s sole expense after our prior written agreement.
15.2 Without prejudice to any other rights or remedies available to us, if the Customer fails to purchase any agreed volume of Goods during the time period agreed with us, the Customer shall be liable to pay us for any amortisation of the tooling outstanding at the end of such time period. We may invoice any sums payable under this condition 15.2, and such invoices will be paid by the Customer in accordance with condition 8.
16. INSOLVENCY AND NON-PAYMENT
16.1 This condition applies:-
16.1.1 if the Customer makes any voluntary arrangements with its creditors, goes into liquidation, or a resolution is passed or order made for the winding up of the Customer (other than for the purpose of a solvent amalgamation or reconstruction);
16.1.2 if the Customer (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or an administrator is appointed over the Customer; or if a floating charge holder over the Customer’s assets appoints an administrative receiver or a receiver is appointed over any of the Customer’s assets;
16.1.3 if a creditor or encumbrancer takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on any part of the Customer’s assets and such process is not discharged within 14 days;
16.1.4 the Customer ceases or threatens to cease to carry on business or is deemed unable to pay its debts within the meaning of S123 of the Insolvency Act 1986; or
16.1.5 we reasonably apprehend that any of the events mentioned above is about to occur in relation to the Customer and we notify the Customer accordingly.
16.2 If this condition applies then without prejudice to any other right or remedy available to us, we shall be entitled to terminate the Contract with immediate effect and suspend any further deliveries under the Contract without incurring any liability to the Customer and if Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
16.3 Furthermore, without prejudice to any other right or remedy available to us, we shall be entitled to terminate the Contract with immediate effect and suspend any further deliveries under the Contract without incurring any liability to the Customer if the Customer fails to pay the relevant invoice in accordance with the terms specified in condition 8.1.
17.1 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 shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
17.2 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
17.3 A person who is not a party to the Contract shall not have any rights under or in connection with it.