Conditions of Business – Dean Group International Ltd
1.1 These conditions apply to any contract made by Dean Group International Ltd (the Company) to the exclusion of any conditions of order or purchase of the Customer (or any other standards, specifications, conditions or particulars of or adopted by the Customer) unless expressly accepted in writing by the Company as part of the contract.
1.2 These conditions replace and exclude any previous terms representations or warranties, which might otherwise apply in relation to the goods.
2 Quotations and Tenders
2.1 No order placed in response to the Company’s quotations or estimate will be binding unless accepted by the Company in writing.
2.2 Tenders (quotes and estimates) submitted by the Company may only be accepted within 30 days from the date of the tender, unless in the tender some other period is specified or accepted.
3.1 At the Company’s sole discretion orders may be cancelled prior to the Company commencing manufacture of tooling required to meet the order or (where existing tooling is to be used) prior to the commencement of manufacture of the goods but not otherwise.
4 Drawings and Tooling
4.1 Any drawings designs or specifications for goods provided to the Company by the Customer shall remain the property of the Customer which shall retain the copyright design right and other intellectual property therein but the Company shall have a lien on all such items for all sums due to it and shall be entitled to sell all items over which it has a lien following notice to the customer. The Customer grants a permanent licence free of charge for the Company to use the drawings designs and specifications for the purposes of the contract and to any purchaser from the Company of these items on a sale pursuant to the terms of this clause. The Company shall be entitled to assume that all designs drawings and specifications provided by a Customer are correct and appropriate to produce the goods the Customer requires. Unless otherwise expressly agreed in writing all tooling made by the Company to produce goods shall be the joint property of the company and the Customer partly owned by the Customer and partly owned by the Company. All copyright design right and other intellectual property in relation to the tooling shall vest jointly in the Customer and the Company. The cost of designing and producing all tooling required to produce the goods shall be borne by the Customer. Where goods of a type previously manufactured by the Company for the Customer are ordered by the Customer the Company shall be entitled to assume that the goods are to be to the latest specification of which full details have been provided by the Customer to the Company. The Customer warrants that use of designs drawings and specifications supplied by it will not infringe the rights of any third party and undertakes to indemnify the Company against any third party claims arising from such use. Tooling and dies produced by the Company shall remain in its custody and shall be stored by the Company and maintained by it in accordance with the Company’s current normal procedures for their normal working life or until the Company considers them unusable. The Company shall take reasonable care, as bailees of the tools and dies but the Company shall not be liable to replace lost or damaged or worn-out tools and dies. The Company shall not be obliged to insure tools or dies. Any alterations to tools and dies due to a change of Customer requirements or inadequate specifications shall be at the Customer’s cost.
5.1 The price stated in the contract is based on the cost to the Company of materials, fuel and power, manufacturing costs, transport and labour at the date of acceptance of the order or quotation (whichever is earlier). If at after the date of contract and before delivery of the goods there is any increase in all or any of such costs, the Company may by notice increase the price for the goods to compensate it for any such increases. Where the price for the goods is varied in accordance with this condition the price as varied shall be binding on both parties and shall not give either party any right of cancellation. The price is exclusive of any value added tax or duty relating to the manufacture, processing, transportation, export, import, sale or delivery of the goods (whether initially charged on or payable by the Company or the Customer) which shall be payable in addition. Prices given are the Company’s ex-works price. If the Company agrees to arrange delivery this shall be at the cost of the customer (being the cost to the Company or, if it delivers itself its standard delivery charges at the date of despatch) and shall be to the Customer’s address stated in the Company’s quotation or estimate unless otherwise expressly agreed in writing.
6 Terms of Payment
6.1 Prices quoted are net. Subject to credit being approved and unless otherwise expressly agreed accounts are due for payment not later than the end of the month following the month of despatch; otherwise payment must be received by the Company before delivery. When deliveries are spread over a period each consignment will be invoiced as despatched and each month’s invoices will be treated as a separate account and be payable accordingly. Failure to pay for any goods or for any delivery or instalment or if any credit limit agreed with a Customer be exceeded the Company shall be entitled to suspend further deliveries and work both on the same order and on any other order from the Customer without prejudice to any other right the Company may have. The Company shall be entitled to interest on overdue accounts at the rate of 4% over the base rate of National Westminster Bank plc current from time to time (before as well as after any judgement). The Company reserves the right where doubts arise as to a Customer’s financial position or in the case of failure to pay for any goods or any delivery or instalment or if the Company exceeds any agreed credit limit to suspend delivery of any order or any part or instalment without liability until payment or satisfactory security for payment has been provided.The Customer shall not withhold payment of any sum due to the Company by reason of any right of set-off or counterclaim which the Customer may claim. If the customer fails to make payment for the goods in accordance with this contract or commits any other breach of this contract of if any distress or execution is levied upon any of the Customer’s goods or if the Customer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Customer or if the Customer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to
wind up the Customer shall be presented or if a receiver administrator administrative receiver or manager shall be appointed over the whole or any part of the Customer’s business or assets or if the Customer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the goods shall become payable immediately. The Company may in its absolute discretion and without prejudice to any other rights which it may have: Suspend all future deliveries of goods to the Customer and/or terminate the contract without liability upon its part: and/or Exercise any of its rights pursuant to clause 12.
7 Delivery and Completion Dates
7.1 The delivery or performance dates specified in the contract are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery. The Company will not be liable in any circumstances for the consequences of any delay in delivery or failure to deliver or perform in any way if the duration of the delay is not substantial or if the delay or failure is due to act of God, fire, inclement or exceptional weather conditions, industrial action (whether at the Company’s premises or elsewhere), hostilities, breakdowns, shortage of labour, materials, power or other supplies, late delivery or performance or non-delivery or non-performance by suppliers or subcontractors, governmental order or intervention (whether or not having the force of law) or any other cause whatever reasonably beyond the Company’s control or of an unexpected or exceptional nature. No delay shall entitle the Customer to reject any delivery or any further instalment or part of the order any other order from the Customer or to repudiate the contract or the order. The company does not undertake to meet any schedule of Customer’s requirements supplied after the date of the contract.
8 Acceptance of Goods
8.1 The Customer shall be deemed to have accepted goods 10 working days (being days the Company is open for business) after delivery to the Customer.
8.2 After acceptance the Customer shall not be entitled to reject goods, which are not in accordance with the contract. If the Customer properly rejects any of the goods which are not in accordance with the contract the Customer shall nonetheless pay the full price for such goods unless the Customer promptly gives notice of rejection to the Company and at the Customer’s cost returns such goods to the Company before the date when payment of the price is due.
9 Delayed Acceptance
9.1 If for any reason the Customer does not accept delivery of the goods when the goods are due and ready for delivery the Company may arrange storage of the goods and the Customer shall be liable to the Company for the reasonable costs (including any insurance – which the Company shall not be obliged to effect) of such storage. This provision is without prejudice to any other right which the Company may have in respect of the Customer’s failure to take delivery of the goods or to pay for them in accordance with the contract when payment would have been due if the goods had been delivered when due and ready for delivery.
10.1 Unless otherwise agreed delivery shall be at the Company’s premises. Where the Company arranges for delivery elsewhere by a third party the costs of carriage shall be reimbursed by the Customer and shall be due for payment immediately on invoice and the Company shall have in respect of them all the remedies available to it
on non-payment of any of the price for the goods. The Customer shall inspect the goods on delivery and shall within 10 working days, of delivery notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with any term applicable thereto description or sample. The Customer shall afford the Company an opportunity to inspect the goods within a reasonable time following delivery and before any use is made of them. If the Customer shall fail to comply with these provisions the goods shall be conclusively presumed to be in accordance with the contract and free from any defect or damage which would be apparent on a reasonable examination of the goods and the Customer shall be deemed to have accepted the goods. The Customer shall notify the Company of any non-delivery of a whole consignment of goods within 14 days of the date of despatch (as stated on the invoice). Notwithstanding the receipt by the Company of any such notice a signature on a carrier’s delivery advice sheet shall be deemed to signify receipt of the quantity of goods indicated on the advice sheet. If the goods are not in accordance with the contract for any reason the Customer’s sole remedy shall be limited to the Company making good any shortage by replacing such goods or, if the Company shall elect, by refunding a proportionate part of the price. The Company’s liability to the Customer, whether for any breach of contract or otherwise, shall not in any event exceed the price and the Company shall be under no liability for any direct loss and/or expense (including, without limitation, finishing or other work done to or with castings) or indirect loss and/or expense suffered by the Customer or liability to third parties incurred by the Customer. All warranties and conditions whether implied by statute or otherwise are excluded from this contract provided that nothing in this contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Company or affect the statutory rights of a buyer dealing as consumer.
11 Non Standard Orders
11.1 Where the Company accepts Customer orders for goods or materials of a type, size or quality not normally supplied by the Company, the Company will use all reasonable endeavours to execute the order, but if it proves impossible, impracticable or uneconomical to carry out or complete the order, the Company reserves the right to cancel the contract or the uncompleted balance thereof, in which event the Customer will only be liable to pay for the part thereof actually delivered.
12 Title to Goods and Risks
12.1 The risk in the goods shall pass to the Customer:
(I) where goods are to be delivered at the Company’s works on delivery, where goods are to be delivered elsewhere by the Company’s own transport on delivery at the destination of the Company’s transport, where goods are to be transported by a third party on consignment of the goods to the third party; or (II) if earlier when the goods are appropriated to the Customer but kept at the Company’s premises at the request of the Customer. Notwithstanding sub clause 12.1 above legal and equitable ownership of the goods shall remain with the company until payment for the goods has been received by the Company in full or until the Customer sells the goods to its Customers by way of a bona fide sale at full market value whichever shall first occur.
12.2 At any time prior to full payment (whether or not payment is then overdue) the Company may (without prejudice to any of its other rights) retake possession of the goods or direct that they be not sold or removed from any premises or any part thereof and may enter on the Customer’s premises by it’s employees or agents for that purpose. Any goods in the Customer’s possession shall be presumed not to have been paid for unless the Customer proves otherwise. The Company may appropriate any payments made by a Customer to any debts owing by the Customer (whether or not then payable or due for payment) in the Company’s absolute discretion. Until the time of full payment for the goods the Customer shall be a bailee of the goods on behalf of the Company and shall store the goods in such a way that they are separately identifiable, nevertheless prior to the time of full payment the Customer shall be entitled to use the goods in the normal course of its business or to sell the goods for full value to third parties in the normal course of its business. The Company shall have the right to trace the proceeds of sale according to the principles in In Re Hallett’s Estate (1880) 13 CH D 696. The Customer’s right to use the goods or to resell them prior to full payment may be terminated forthwith by written notice given by the Customer and shall automatically terminate without such notice on the appointment of any administrative receiver or administrator of the Customer or it entering into liquidation or becoming bankrupt or subject to any other procedure under insolvency law. If the Customer’s right to use or resell the goods is terminated the Company may:- pass title to the goods, or to any part of them to the Customer by written notice: cancel any order or uncompleted order and stop goods in transit: resell any goods on such terms as it thinks fit and the Customer shall be liable (in addition to any other rights of the Company against it) to pay the difference between the contract price and any resale price and be liable for the Company’s costs and expenses (including of repossession storage and resale).
12.3 Nothing in this clause shall give the Customer any right to return any of the goods and the Customer shall be liable to the Company for the price of the goods notwithstanding that property in the goods has not passed.
13 Warranty, Limit of Responsibility
13.1 The Company warrants that if any defect in the goods is discovered which was not known to the Customer and which would not have been apparent on a proper and careful inspection of the goods which is notified to the Company within 10 days of delivery or if the goods are found within 30 days of that date (“The Warranty Period”) to be not in accordance with the contract or any express description or representation given or made on behalf of the Company then the Company will (at the Company’s choice) either replace the goods (or that part which is defective) or accept a return of the goods and refund the purchase price (less a reasonable allowance for damage to the goods occurring between delivery and return thereof). The Customer’s remedies in respect of any claim under the foregoing express warranty or any condition or warranty implied by law or any other claim in respect of the goods (whether or not involving negligence on the part of the Company) shall in all cases be limited to replacement or refund of the purchase price as aforesaid. Any condition or warranty implied by law shall cease to apply after the expiry of the warranty period. Except as provided above the Company shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct or consequential, and any other remedy (including without limitation in respect of any alleged breach of contract or misrepresentation) which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law.
14 Advice Given to Customers
14.1 The Company shall be under no liability whatsoever in respect of any advice or views it offers or expresses to a Customer expressly or by implication as to the design of goods the suitability or otherwise of the goods for any purpose or any process to which it may be intended to subject the goods unless such advice is requested by the Customer in writing and the Company replies in writing whereupon should such express representations be found to be wrong or inaccurate the liability of the Company will be limited to an appropriate proportion of the purchase price of the goods and the Company shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct or consequential, and any other remedy which will otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law.
15 Tolerances and Tests
15.1 Any requirements as to gauges, dimensions, weights, quantities and sizes must be given in writing by the Customer prior to the Company accepting the order or making the tender: any so given will so far as practicable be adhered to within normal manufacturing tolerances, but reasonable excesses and deficiencies thereof or therein shall be accepted by the Customer who shall not be entitled to reject any goods or to replacement of any goods on the ground that they are not precisely as specified. Unless specifically agreed in writing the Company shall not carry out any physical (other than visual) or chemical tests on goods and accepts no liability for deficiencies in the goods, which would be revealed by such tests. It is the responsibility of the Customer to decide if tests should be carried out taking into account the purpose for which the goods are intended. When the Company provides the Customer with a sample casting or example of goods these shall be deemed to conform to the Customer’s requirements unless the Customer notifies the Company to the contrary in writing within 7 days of receipt of the sample. Unless otherwise specifically agreed in writing, all tests and test pieces whatsoever required by the Customer will be charged extra. Unless otherwise specifically requested by the Customer, tests and inspections shall take place under the Company’s standard testing arrangements, details of which are available on request and such tests shall be final. All tests are subject to analytical tolerances.
16 Quantities Delivered
16.1 The Company shall have performed the contract if it delivers quantities or weights within 10% (over or under) of the quantities ordered by the Customer. Any discrepancy within 10% as aforesaid shall not entitle the Customer to reject any delivery or any further instalment or part of the order or any other order from the Customer or repudiate the contract or the order. Any discrepancy in excess of 10% must be notified in writing to the Company within 7 working days from the despatch of the goods. The Company’s liability for short delivery shall be limited to delivery of appropriate goods to make up any shortfall or, if the Company so elects a pro rata reduction in the total contract price. In respect of excess deliveries the Customer may elect to keep the surplus goods and pay for them at the contract rate or return the excess goods.
17 Sub – Contracting
17.1 The Company reserves the right to sub-contract the whole or any part of the contract.
18 Applicable Law
18.1 The contract shall in all respects be governed by and constructed in accordance with English Law and the Customer hereby submits to the non-exclusive jurisdiction of the English Courts.