Designed Network Solutions LIMITED ‐ TERMS OF SALE
1.1 In these Terms of sale the following words will (unless the context otherwise requires) have the following meanings: “Seller” means Designed Network Solutions LIMITED (registered under registered number 9710802) “Buyer” means the purchaser of any Goods pursuant to these Terms;
“Confidential Information” means any and all technical data, commercial information, know‐how, specifications, inventions, processes, initiatives and other information which is of a confidential nature and which is disclosed to the Buyer by the Seller or its Agents including but without limitation all quotations and estimates;
“Contract” means a legally binding contract between the Seller and the Buyer for the sale of the Goods made pursuant to clause 3;
“Goods” means the goods sold by the Seller to the Buyer pursuant to these Terms;
“INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“Intellectual Property” means any and all patents, trade marks, service marks, registered designs, applications for any of the foregoing, copyright, unregistered design rights and any other similar protected rights in any other country in relation to the Goods owned or capable of being owned by the Seller;
“Order” means a written purchase order issued by the Buyer detailing the Goods it wishes to purchase;
“Party” means a party to the Contract;
“Terms ” means these terms and conditions of sale;
1.2 The clause headings are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
1.3 References to clauses are to clauses in these Terms.
1.4 Where the context dictates, the singular shall include the plural and vice versa and any gender includes the other gender.
1.5 Any reference to any statute or statutory provision will (unless the context otherwise requires) be construed as a reference to that statutory provision as may be amended, consolidated, modified, extended, re‐enacted or replaced from time to time.
2 ORDERS AND CONTRACT
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Terms. These Terms shall govern the Contract to the exclusion of any other terms. No terms stipulated orally or contained in any Order or other similar document issued by the Buyer to the Seller will form part of the Contract.
2.2 Any quotation (whether written or oral) given by the Seller is given on the basis that it is an invitation to treat only and no Contract will come into existence until the Seller issues a written acknowledgment of the Order. No Order placed by the Buyer will be deemed to be accepted by the Seller until a written acknowledgment of Order is issued by the Seller.
2.3 Any variation of or addition to these Terms will only have effect if it is in writing, contains a specific reference to these Terms and is signed by a duly authorised representative of the Seller and the Buyer.
2.4 The Buyer must ensure that the contents of any Order and any applicable specification are complete and accurate and the Seller will not be liable for any inaccuracies or omissions relating to such specification.
2.5 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller’s quotation or the Seller’s acknowledgment of Order form (if the Buyer’s order is accepted by the Seller).
2.6 The Seller reserves the right to make any changes in the specification of the Goods any time prior to delivery that are required to conform to any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
2.7 Unless otherwise agreed in writing all drawings, tables, descriptions, specifications, illustrations, technical data, advertising and other similar information issued by the Seller or contained in the Seller’s catalogues, brochures, trade literature, price lists or other similar published materials are issued or published only for the purpose of giving an approximate idea of the Goods described in them and will not form part of the Contract. written T&C of Sale 2
consent of the Seller and on the understanding that the Buyer will indemnify the Seller in full against all costs and expenses incurred (directly or indirectly) by the Seller as a result of such cancellation, postponement or variation.
2.9 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.10 Each Order, when accepted by the Seller, shall be treated as a separate Contract, unless the parties have agreed in writing that a number of Orders will be treated as forming one Contract. For the avoidance of doubt, failure by the Seller in relation to one delivery of Goods shall not put the Seller in breach of contract in relation to other delivery of Goods under another Contract. Where Goods are to be delivered in installments, each installment shall be treated as a separate contract unless agreed otherwise by the parties in writing.
3.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place, unless agreed otherwise. Where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Seller shall be under no obligation under Section 32(2) of the Sale of Goods Act 1979.
3.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence unless previously agreed by an authorised representative of the Seller in writing. The Seller will use its reasonable endeavours to comply with any such agreed date of delivery but does not accept liability for any loss or damage arising directly or indirectly out of delay in delivery or failure to deliver.
3.3 If the Buyer refuses or fails to take delivery of any of the Goods at the time stated for delivery (otherwise than by reason of any event of force majeure referred to in clause 16 or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller will be entitled to:
(a) store the Goods until actual delivery, and charge the Buyer for the costs of storage and any related insurance and transport; and/or
(b) sell the Goods at the best prices obtainable in all the circumstances, after deducting all reasonable storage, insurance, transport and selling expenses and invoice the Buyer for any sum outstanding which is less than the price and the Buyer shall pay such sum immediately.
4 RISK, CARRIAGE AND STORAGE
4.1 Risk of damage to or loss of the Goods shall pass to the Buyer.
(a) in the case of Goods to be collected from the premises of the Seller, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
(b) in the case of Goods to be delivered to the Buyer’s premises by the Seller, when the Goods are delivered to the premises ( or if the Buyer wrongfully fails to take delivery, at the time that the Seller has tendered delivery of the Goods); or
4.2 The Seller is prepared to arrange specific types of carriage at the request and cost of the Buyer as agent of the Buyer only and without liability or obligation on the part of the Seller.
4.3 If through instructions or lack of instructions from, or otherwise through the fault of the Buyer, the Seller is unable to despatch for delivery the Goods within seven days after the date of notification that they are ready for despatch, the Seller shall be entitled to arrange insurance and storage within its own works or elsewhere on behalf of the Buyer and the Buyer will pay the Seller reasonable charges incurred for such insurance or storage (and shall be relieved from any obligation to deliver). In the event that the Seller is unable to procure despatch for and/or delivery with the within 14 days of the expiry of the said 7 day period, the Seller may sell the Goods at the best prices obtainable in all the circumstances, after deducting all reasonable storage, insurance, transport and selling expenses and invoice the Buyer for any sum outstanding which is less than the Price and the Buyer shall pay such sum immediately.
4.4 The Seller is not responsible for export demurrage charges or additional costs resulting from delay in unloading.
5.1 Full legal and beneficial ownership of the Goods shall be retained by the Seller until the Seller has received payment in full in respect of: (a) the Goods; and
(b) All other sums which are or which become due and owing by the Buyer to the Seller on any account whatsoever.
5.2 Until ownership of the Goods has passed to the Buyer, the Buyer shall hold the Goods in a fiduciary capacity and as bailee of the Seller, and shall at all times take proper care of the same and will not obliterate or obscure any identifying mark on the Goods or their packaging and will keep the Goods separate from any other goods and in such manner that they may be clearly identified as belonging to the Seller, and the Buyer hereby grants to the Seller the right to enter on the Buyer’s premises at any time to check that the Buyer is complying with the obligation contained in this Condition.
5.3 Subject to clauses 5.4 and 5.5, the Buyer shall be at liberty to sell the Goods in trust to pay to the Seller such sums to which it is entitled under the provisions of the Contract, provided that the sums due to the Seller shall be kept separate from any monies of the Buyer and/or any third party.
the Seller is entitled under the Contract or any other Contract between the Seller and the Buyer. T&C of Sale 3
5.4 The Seller may at any time revoke the Buyer’s conditional power of sale contained in clause 5.3 by giving 24 hours’ prior notice in writing of such revocation and without notice in the event of the Buyer being in default in the payment of any sum whatsoever due to the Seller from the Buyer (whether in respect of the Goods which are the subject of the Contract or in respect of any other Contract between the Seller and the Buyer) or if the Seller has reasonable and bona fide doubts as to the solvency of the Buyer.
5.5 The Buyer’s conditional power of sale contained in clause 5.3 shall automatically cease if:
(a) a receiver or administrative receiver is appointed over the whole or any part of the assets or the undertaking of the Buyer, or
(b) a winding up order is made against the Buyer or the Buyer goes into voluntary liquidation (except solely for the purpose of reconstruction or amalgamation) or calls a meeting or makes any arrangement with its creditors or becomes subject to an administration order or becomes bankrupt; or
(c) the Buyer pledges or in any way charges by way of security for indebtedness the whole or any part of the Goods; or
(d) the Contract terminates for any reason.
5.6 On determination of the Buyer’s conditional power of sale under clauses 5.4 and/or 5.5, the Buyer shall place the Goods in the Buyer’s possession at the Seller’s disposal and the Seller shall be entitled to enter upon the premises of the Buyer for the purpose of removing the same using such force as is reasonably necessary for such purpose and (if necessary) dismantling or separating the Goods from anything to which they are attached and all monies then due under the Contract shall become immediately due and payable.
5.7 If at the time of the determination of the Buyer’s conditional power of sale under clauses 5.4 and/or 5.5 any Goods are in the custody or control of any individual, firm or Seller other than the Buyer, the Buyer shall immediately provide the Seller with an authority in writing to collect the same and the same shall then be at the Seller’s disposal.
5.8 In the event that the Contract requires the installation of the Goods at or in the premises of any third party, the Buyer shall notify the third party before installation begins of the terms of this clause 5 and obtain the acknowledgement in writing of the third party (sending a copy thereof to the Seller) that the third party has noted the terms of this clause 5 and concedes the rights of the Seller under it as if the Contract was made by the third party directly with the Seller.
5.9 The Seller will have the right to maintain an action against the Buyer for the price of the Goods notwithstanding that property in the Goods has not passed.
5.10 If the Goods are mixed with any other goods, which are the property of the Buyer or are processed with or incorporated into goods, which are the property of the Buyer, the product of the same shall become the sole and exclusive property of the Seller. If the Goods are mixed with any goods or property of another person or are processed with or are incorporated into any other goods, which are the property of another person, the products of the same shall become owned in common with such third party.
6 PRICE AND PAYMENT
6.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the Order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller, without giving notice to the Buyer.
6.2 The Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
6.3 Except as otherwise stated in the Seller’s written quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall pay the Seller’s charges for transport, packaging and insurance.
6.4 Unless otherwise agreed in writing by an authorised representative of the Seller and the Buyer the prices quoted shall be in pounds sterling and shall be exclusive of value.
7.1 Subject to clause 7.4 and any special terms agreed in writing between the Buyer and the Seller, the Seller may invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
7.2 The Buyer shall subject to clause 7.4 pay the price of the Goods 30 days EOM of the date of the Seller’s invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
7.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may: (a) cancel the Contract or suspend any further deliveries to the Buyer; T&C of Sale 4
(b) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
(c) charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above Lloyds TSB Bank pie base rate from time to time accruing on a daily basis from the due date, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
7.4 The Seller reserves the right at its absolute discretion to demand payment in full of the price for the Goods at any time prior to delivery of the Goods, whereupon the Buyer shall pay the price for the Goods prior to the estimated date for delivery of the Goods.
7.5 Notwithstanding any other provision of these Terms, all sums outstanding under the Contract will become due immediately on termination of the Contract. The Buyer will make all payments due under the Contract without any deduction whether by way of set‐off, withholding, counterclaim, discount, abatement or otherwise. The Seller shall be entitled to set off and retain any and all sums due to the Buyer against any contingent or actual liabilities of the Buyer to the Seller.
7.6 [The Seller will have in respect of unpaid sums due to it from the Buyer a general lien on all property belonging to the Buyer in its possession (if any) and shall be entitled to sell or dispose of such property as agent for and at the expense of the Buyer and apply the proceeds of sale towards payment of any such unpaid sums on giving 28 days notice in writing to the Buyer if payment of the price is not made pursuant to clause 7][Confirm]
8.1 Except as otherwise provided in these Terms, all warranties, conditions and other terms implied by statute or common law (except for the Terms implied by section 12 of the Sale of Goods Act 1979 that are not permitted to be excluded) in relation to the Goods are, to the fullest extent permitted by law, excluded from the Contract.
8.2 Goods shall materially conform to any agreed specifications set out in the Order (but only to the extent acknowledged and accepted by the Seller) or otherwise explicitly agreed in writing between the parties as forming part of this Contract.
8.3 The Seller shall be under no liability to the Buyer or any other person in respect of any defect in the Goods arising from any drawing, design or specification supplied by the or on behalf of the Buyer.
8.4 The Seller shall be under no liability in respect of any defects arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions, misuse or alteration or repair of the Goods without the Seller’s approval.
8.5 Goods shall be inspected promptly by the Buyer upon delivery. Any claims relating to the quality, condition or otherwise relating to the Goods must be made in writing immediately after the Buyer learns of any defect or issue and in any event within 14 days (save where any defect was latent and not reasonably apparent upon inspection in which case such defect shall be notified within 7 days of the Buyer becoming aware of the defect). Any claim not made in writing and received by the Seller within the aforesaid time limits shall not be accepted by the Seller and the Seller shall have no liability for such failure.
8.6 In the case of failure in service of the Goods, notification of failure must be made in writing within 14 days of failure. Unless notification shall be made in writing to the Seller within such period of 14 days and the failed Goods made available for inspection by the Seller or any person on its behalf, any claim in respect thereto shall not be accepted by the Seller and the Seller shall have no liability for such failure.
8.7 In the event of any Goods supplied by the Seller and not being of its own manufacture being proved to be defective or failing in service, the Buyer shall be entitled only to such restitution as the Seller may receive from the manufacturer and/or supplier to the Seller. The Seller makes no warranties in relation to such Goods but will use reasonable endeavours to procure the benefit of any available third party warranty to the Buyer.
8.8 The Seller shall have the right to inspect and conduct its own tests upon any Goods that are the subject of a damage or loss or quality claim or have failed in service.
8.9 If the Goods have been specifically manufactured or modified for the requirements of the Buyer, the Seller does not warrant that the Goods are fit for any particular purpose.
8.10 Without prejudice to the provisions of clauses 8.1 or 8.2, the sole remedy available to the Buyer in respect of any defect in the Goods arising out of design or manufactured default shall be for the Seller to the repair or replace such Goods (with new and defect free Goods) within a reasonable period of time, at the sole discretion of the Seller.
9 LIMITATION OF LIABILITY
9.1 The following provisions set out the entire liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub‐ contractors) to the Buyer in respect of any breach of the Contract, any representation, statement or tortious act or omission, including but without limitation, negligence arising under or in connection with the Contract.
9.2 Subject to clauses 9.4, the Seller’s total liability under the Contract shall be limited to the price the Seller has received in relation to the Goods under that Contract.
9.3 Subject to clauses 9.4, the Seller shall not be liable to the Buyer in contract, tort or otherwise for any loss of use, loss of profit, loss of anticipated profit, loss of business, overhead recovery, machining costs, revenue, or anticipated savings, any damage to the Buyer’s reputation or goodwill, any product recall or business interruption costs or any other economic, special, indirect or consequential loss or damage of any kind (even if the Seller has been advised of such loss or damage) arising out of or in connection with the Contract. T&C of Sale 5
9.4 Nothing in the Contract or these Terms shall exclude or limit the liability of the Seller for any death or any personal injury caused by the Seller’s negligence or for fraud.
9.5 The provisions of this clause 9 shall survive the termination or expiry (for whatever reason) of the Contract.
10 EXPORT TERMS
10.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of INCOTERMS shall have the same meaning in these Terms, but if there is any conflict between the provisions of INCOTERMS and these Terms, the latter shall prevail.
10.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Terms.
10.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
10.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered ex‐works.
10.5 The Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11 INDEMNITY AND INTELLECTUAL PROPERTY
11.1 The Buyer shall indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable through any work done in accordance with supplied data, designs, specifications, drawings or special requirement of the Buyer which may involve any infringement of any Intellectual Property or other rights of a third party or may cause any actionable damage or loss to any third party.
11.2 The ownership of and sole rights to obtain the ownership of all Intellectual Property in the Goods shall at all times be vested in the Seller and no
Intellectual Property or other right is transferred or conferred by these Terms.
11.3 The Buyer shall not use the Seller’s name, logo or any other identification marks for the purpose of advertising or publicity without the Seller’s prior written consent.
12.1 Without prejudice to any of its other rights or remedies, the Seller shall have the right to terminate the Contract immediately at any time by giving notice in writing to the Buyer if:
(a) the Buyer commits a material breach of any of its obligations under the Contract which is not capable of remedy; or
(b) the Buyer has committed a material breach of any of its obligations under the Contract which is capable of remedy but which has not been remedied within a period of thirty (30) days following receipt of written notice to do so; or
(c) the Buyer enters into any compromise or arrangement with its creditors, or if an order is made or an effective resolution is passed for its winding up (except for the purposes of amalgamation or reconstruction as a solvent Seller) or if a petition is presented to court, or if a receiver, manager, administrative receiver or administrator is appointed in respect of the whole or any part of the Buyer’s undertaking or assets; or
(d) the Buyer ceases or threatens to cease to carry on its business.
12.2 The Seller may immediately cancel or terminate a Contract if the Buyer, or any agreed terms of the Buyer, are not acceptable to the Seller’s insurers or where applicable to the Export Credit Guarantee department or to any other Governmental or other body guaranteeing Overseas Contracts.
13 FORCE MAJEURE
13.1 The Seller 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 its obligations in relation to the Contract or to these Terms if the delay or failure is due to any act beyond the Seller’s reasonable control, including but without limitation, any Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil
disturbance or requisition, regulations, bye‐laws, prohibitions or measures of any kind on the part of any governmental or local authority, import or export regulations or embargoes, strikes, lock‐outs or other industrial actions or trade disputes or power failure.
14.1 The Buyer shall at all times keep confidential the Confidential Information.
14.2 The Buyer will restrict disclosure of the Confidential Information to such of its employees, agents or subcontractors as need to know the same and will ensure that such employees, agents or subcontractors are subject to equivalent obligations of confidentiality as bind the Buyer.
14.3 The Buyer will not without the prior written consent of the Seller publish or disclose the Confidential Information to any third party or make any use of the Confidential Information except to the extent necessary to implement this Agreement or if required to by law.
15 NOTICES T&C of Sale 6
Notices under these Terms shall be deemed to be served on delivery when delivered by hand, on receipt of a printout confirming due transmission when transmitted by facsimile, or five (5) days after mailing if sent by mail, provided the postage is properly paid and such notice is correctly addressed to the respective Party at its registered office, or such other address as shall have been notified to the other Party in writing.
16.1 The Buyer will not without the prior written consent of the Seller assign or transfer the Contract or any part of it to any other person.
16.2 The Seller may without the prior written consent of the Buyer assign, transfer or subcontract the Contract or any part of it to any other person.
16.3 No waiver by the Seller of any breach of the Contract or of these Terms by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision of the Contract.
16.4 Nothing in the Contract or these Terms shall constitute or be construed as constituting a partnership or joint venture between the Seller and the
Buyer or shall authorise either Party to enter into contractual relationships or incur obligations on behalf of the other Party.
16.5 If any provision of the Contract or these Terms is held by any competent authority or a court of law to be invalid or unenforceable in whole or in part the remaining provisions of the Contract and the provisions of these Terms shall remain in full force and effect.
16.6 An entity which is not expressly a Party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the
Contract or these Terms.
16.7 These Terms and the acknowledgement of Order represent the entire agreement between the Parties relating to the sale of the Goods and supersede all prior agreements, arrangements and understandings relating to the sale of the Goods.
16.8 The Buyer agrees that it will have no remedy in respect of any untrue representation innocently or negligently made by or on behalf of the Seller prior to entering into the Contract upon which the Buyer relied in entering into the Contract, whether such representation was made orally or in writing. Nothing in the Contract or these Terms will exclude or limit the liability of the Seller for fraudulent misrepresentation.
17 GOVERNING LAW
17.1 The Contract and these Terms shall be governed by and construed in accordance with the laws of England and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.