Terms and Conditions of Sale
THE CUSTOMER'S ATTENTION IS DRAWN TO THESE REVISED TERMS DATED MARCH 2010 AND IN PARTICULAR TO THE PROVISIONS OF CLAUSE 6.
1. General
1) Dichtomatik Limited (hereinafter referred to as "we”, "us” and
"our”) only sells and delivers products on the basis of the following
conditions. These apply to all our offers, consultations and other
commercial endeavours. Any other condition sought by you the customer
(hereinafter referred to as "you” and "your”), whether in writing or
verbally, shall not take effect or be in any way binding upon us unless
we expressly confirm our acceptance of that condition in writing.
2) Our quotations do not give rise to any obligation for us to supply
any products and therefore do not have any binding effect. A contract
for us to supply products does not come into effect and become binding
on us until express confirmation of our acceptance of the relevant
product order is issued in writing.
3) Any moulds manufactured at your request shall remain our property
even if you have made a financial contribution on a pro-rata basis to
the total cost of their manufacture.
4) When delivering any products to you, a tolerance on the original
order quantity of plus or minus 10% is permissible in accordance with
normal manufacturing practise in our industry.
5) Unless otherwise expressly agreed by us in writing, we deliver all
products on an Ex Works basis. As such, any products you have ordered
will be deemed to have been delivered to you, and the risk in those
products will always pass to you, when the relevant products are
collected by the applicable freight forwarder, carrier or postal
service, even in the event of the products being delivered on
carriage-paid delivery terms.
2. Delivery and terms for delivery
1) Our product delivery lead-times are non-binding estimates only,
unless we have expressly confirmed a binding fixed delivery lead-time
in writing for any products, and begin to run from the date we issue
express confirmation of our acceptance of the relevant product order in
writing, but not before all details of the contract to supply the
relevant products are completely clarified. Part deliveries of any
products ordered are permissible. Our delivery obligations under this
condition 2 are subject always to the condition that we are supplied
with source materials for the products or the products themselves
correctly and on time by our relevant suppliers and we shall not be
liable for any delay in delivery of, or failure to deliver, any
products arising from any failure by any of our suppliers to do so.
2) Our product delivery lead-times will be extended for the period of
any event of force majeure, including (without limitation) any labour
disputes, strikes or lockouts or any other occurrence beyond our
control, if that event prevents, hinders or delays the manufacture or
delivery of the products in question. We shall not be liable for any
breach of contract or inability to perform any of our obligations under
these conditions caused by any event of force majeure, even if that
event occurs while we are in default of any binding fixed delivery
lead-time.
3. Payment Conditions
1) We reserve the right, by giving written notice to you at any time
before delivery of the products, to increase the price payable for the
products to reflect any increase in the cost to us of supplying the
products that is due to any factor beyond our control (such as, without
limitation, foreign exchange fluctuation, currency regulation,
alteration of duties or significant increases in the cost of the
labour, materials, increased costs of supply enforced by any of our
suppliers or other costs of manufacture), any change in the delivery
dates or quantities of the products that are requested by you or any
delay caused by your instructions or your failure to give us adequate
information or instructions or increased costs of reply enforced by
third party suppliers.
2) Unless otherwise expressly agreed by us in writing, any invoice for
any products ordered by you is payable by you within 30 days from the
end of the month in which the relevant products were delivered under
condition 1(5) above. Your payment of any such invoice must cover the
full invoice value, free of all applicable bank charges.
3) If payment of any invoice has not been effected or has only been
partially effected by you before expiry of the relevant 30-day period
under condition 3(2) above, we reserve the right to charge you interest
on the outstanding amount at the rate of 2% over and above the Bank of
England’s base lending rate or 7% per annum, whichever is greater.
Exercising this right is without prejudice to our right to seek damages
for your breach of condition 3(2) and any other rights and remedies
available to us in respect of such breach under these conditions, at
law or in equity. In the event of any breach of condition 3(2), we are
entitled to rescind the contract for supply of the products for which
full and timely payment has not been received or only to undertake
further product deliveries against prior payment from you or some other
form of security acceptable to us.
4) You shall not be entitled to withhold any payment of, or to exercise
any right of set-off against, any amount payable by you under these
conditions.
4. Retention of Title
1) Title in any products delivered to you shall remain vested in us and
shall not pass to you until you have made payment in full to us of all
sums due to us (i) in respect of those products, (ii) in respect of any
other products delivered or otherwise under these conditions and (iii)
under any other contracts between you and us. Until such time as we
have received all such sums, the products in question must not be
pledged in any way by you or transferred as security, you must
immediately inform us in the event of any attachment to or impounding
of the products or any other equivalent or similar measures being
implemented by any third party and you shall be liable for all actions
of intervention and associated costs.
2) For so long as title in any products remain vested in us under
condition 4(1) above: (i) we shall be at liberty at any time to retake
possession of those products and, for that purpose, you grant us, our
agents and employees an irrevocable licence at any time to enter any
premises where the products are or may be stored; and (ii) you shall
insure those products in the joint names of you and us. If, prior to
the passing of title in any such products to you, you shall make any
addition or alteration to those products or process or incorporate them
in other goods or equipment, ownership of those products, as added to,
altered, processed or incorporated, shall remain ours. Should you
dispose of any such products, irrespective of their state, you hereby:
(i) assign to us (by acceptance of these conditions) all claims and
ancillary rights you may obtain by reason of such disposal, such
assignment being limited to (but taking precedence over all other
rights) the proportional amount of our respective claim to those
products (corresponding to the price paid by you for the products
disposed of when you obtained them from us); and (ii) undertake to
inform your customers, upon our request, of this assignment and to give
us all information and documents required for us to claim, exercise and
enforce our rights against your customers, and you shall only be
entitled to collect the resale price obtained for disposing of such
products if we, in our sole discretion, do not revoke such entitlement.
3) If any products in which title remains vested in us under condition
4(1) above are delivered in a country whose laws do not, or in a
restricted way, allow reservation of property, then you are obliged
to: (i) provide us with all necessary securities permissible in the
respective country; (ii) undertake all necessary measures for the valid
reservation of property (such as registration); and (iii) secure these
rights and permissible securities in the respective country. In the
event the value of these securities in their entirety exceeds our
respective claim over the products by more than 20%, we shall (at your
request) release such of these securities as we in our sole discretion
consider appropriate to reduce the value of the remaining securities in
their entirety to 120% or less of our respective claim.
4) The foregoing provisions of this condition 4 do not in any way
impede or effect the passing of the risk in any products under
condition 1(5) above.
5. Defects in Products
1) Our technical consultations and quotations are worked out with the
utmost diligence, taking into consideration all relevant parameters and
circumstances known to us at the time of doing so. All our
recommendations for the use of any products are given with the best of
such knowledge. As such, except where we have expressly guaranteed in
writing the suitability of any given product for a particular purpose
or use, we cannot give any guarantee as to the suitability of any
products for any given use or purpose due to the scope and diversity of
application of such products, the different requirements they are
designed to meet and the breadth of individual circumstances in which
such products are applied or employed. You are therefore required to
scrutinise, test and determine the suitability of any of our products
for any proposed purpose or use and, subject to condition 4(3), make
such technical or other modifications to those products as are
necessary for their proposed purpose or use. Please note that the
German industrial standard DIN 7716 (5.82) applies to our storage of
elastomer articles.2) We shall not be liable for any claim for any
product defect (including any failure by a product to satisfy a
particular purpose or use that we have guaranteed in writing): (i) if
you do not inspect the products immediately after arrival at their
place of destination and, unless the defect only becomes recognisable
upon use of the products or their incorporation into other equipment,
start using the products or incorporate the products into other
equipment; (ii) if the defect results from or has been caused by any
modification you have made to the products or your use of the products
with any other goods or equipment that we have not previously
authorised or approved in writing for such purpose or use; (iii) if
your use of those products, or the mixture or combination of those
products with any other goods or equipment, does not cease immediately
upon your discovery of the defect; or (iv) resulting from fair wear and
tear in the course of the particular purpose or in the circumstances
for which those products are being used.
3) Any claim in relation to: (i) any defect in any products that
becomes apparent after an inspection in accordance with condition 5(2)
can only be recognised by us if it is reported to us by letter or fax
no later than 14 days after the arrival of those products at their
place of destination; or (ii) any hidden defect which becomes apparent
after use of the products with any authorised or approved goods or
equipment can only be recognized by us if it is reported by letter or
fax no later than 1 month after the arrival of those products at their
place of destination and, only then, if it is reported within 1 week of
discovery. In the case of any claim recognised by us under this
condition 5(3), you must allow us to have the products in question to
be inspected by an independent expert, or immediately provide us with
the opportunity for such inspection to be carried out on sufficient
samples of the products in question, for independent verification of
the defect.
4) Where, under condition 5(3), any defect in any product is
independently verified, your sole remedy (unless otherwise expressly
agreed by us in writing) shall be our replacement, free of charge, of
the defective products. If we do not replace the defective products
within a reasonable time or performance of such remedy is impossible or
refused by us, you shall be entitled to: (i) claim a proportionate
reduction in price paid for the products; or (ii) terminate the
contract and seek compensation under condition 6(2)).
5) Save as expressly set out in these conditions, all warranties
relating to the products, whether express, implied, statutory or
otherwise, are hereby excluded to the fullest extent permitted by law.
6) The warranties given under this clause 5 does not extend to DuPont
or any other third party branded parts, materials or products, in
respect of which you shall only be entitled to the benefit of any
warranty or guarantee as given by the relevant manufacturer to us and
subject to any terms and conditions that are applied thereto by such
manufacturer. Where we supply DuPont or any other third party branded
parts, materials or products, we shall endeavour to transfer to you the
benefit of any such warranty or guarantee given to us.
7) Where we supply DuPont products to you, we specifically refer you to
the information furnished by DuPont in relation to those products that
we may have previously supplied to you as part of our quotation process
and which is, in any event, available directly from DuPont and/or the
website of DuPont.
6. Liability
1) Nothing in these conditions shall in any way exclude or limit our
liability for: (i) death or personal injury resulting from our
negligence; (ii) any fraud or fraudulent misrepresentation; or (iii)
any other loss or damage that cannot be excluded or limited by law.
2) SUBJECT TO CONDITION 6(1) ABOVE AND UNLESS OTHERWISE EXPRESSLY
AGREED BY US IN WRITING, OUR ENTIRE LIABILITY IN RESPECT OF ANY PRODUCT
DEFECT OR DELIVERY DELAY OR ANY BREACH OF CONTRACT, MISREPRESENTATION
OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) SHALL, IN THE CASE
OF ALL CLAIMS OR SERIES OF CONNECTED CLAIMS, BE LIMITED TO DAMAGES NOT
EXCEEDING THE PURCHASE PRICE OF THE PRODUCTS THAT HAVE GIVEN RISE TO
SUCH LIABILITY OR IN CONNECTION WITH WHICH SUCH LIABILITY HAS ARISEN.
3) SUBJECT TO CONDITION 6(1) ABOVE, IN NO EVENT SHALL WE BE LIABLE FOR
ANY CLAIMS FOR: (I) LOSS OF PROFITS, BUSINESS, CONTRACTS, REVENUE,
ANTICIPATED SAVINGS OR GOODWILL OR ANY OTHER ECONOMIC LOSS; OR (B) ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE; WHETHER
FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF BREACH OR FAILURE OF
EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
4) Our liability in respect of DuPont or any other third party branded
products is limited to the amount that we are able to recover from
DuPont or the relevant third party, which may be subject to alternative
governing law and jurisdiction and any other contractual or other terms
that govern our relationship with that third party. Further we shall
have no liability whatsoever in respect of any technical information
furnished by us or any third party in respect of any products that we
supply and you acknowledge that such information is intended for use by
persons having technical skill and that it is given and accepted by you
at your own risk.
7. Place of Performance, Place of Jurisdiction, Law applicable
1) The place of performance for product delivery and payment under
these conditions is Donington House, Riverside Road, Pride Park, Derby
DE24 8HX.
2) These conditions and any contract between you and us shall be
governed by English law and both of us hereby submit to the
non-exclusive jurisdiction of the English courts. We are entitled, at
our sole discretion, to institute legal proceedings in any court of law
that has jurisdiction over your main place of business.3) The ICC
Incoterms 2000 (as amended from time to time) apply to these
conditions.
4) Neither the contract between you and us nor any of these conditions
creates any right enforceable by any third party under the Contracts
(Rights of Third Parties) Act 1999.
5) If any of these conditions is held to be or becomes void, illegal,
invalid or unenforceable for any reason, the application and the
validity of the contract between you and us and of the rest of these
conditions shall remain unaffected.
March 2010
