DIAMOND GROUND PRODUCTS LTD (The Company)
The following Conditions apply to and are deemed to be incorporated in all contracts for the sale and supply by the Company of equipment materials and services unless the contrary is expressly and specifically agreed in writing by the Company. They exclude any terms and conditions proffered by the Customer.
a) Unless otherwise stated a quotation is open for acceptance within a period of 30 days from the date thereof.
b) A quotation does not constitute an offer and may be withdrawn at any time prior to the confirmation of the order by the Company.
c) No order shall be deemed to have been accepted by the Company until the Company has despatched official written confirmation of the order to the Customer.
a) An order or the acceptance of a quotation must be accompanied by sufficient information to enable the Company to proceed with the order forthwith and thereafter any modification must be agreed in writing.
b) When ordering goods the reference numbers should be quoted in all cases where such are given in the Company’s published literature. If a special quotation has been made, the quotation reference should be stated.
c) All telephone and facsimile orders should be confirmed by an official order or letter.
d) All communications relating to orders should specify the number and date of the order, description of the goods and catalogue reference number.
e) All orders accepted by the Company are not cancellable and are subject to these Terms and Conditions and any Special Conditions submitted by the Company in the quotation. If these Terms and Conditions and such Special Conditions conflict, then the Special Conditions shall prevail. These Terms and Conditions and any Special Conditions shall prevail over any terms and conditions inconsistent with them whether appearing on the order placed with the Company or otherwise unless specifically accepted in writing by the Company.
3. LIMITS OF CONTRACT
a) A quotation includes only such goods and work as are specified therein.
b) The Customer shall not transfer his rights to any third party without the Company’s prior written consent.
c) The Company will make every endeavour to execute all orders at prices ruling at the time of acceptance but reserves the right to alter prices to those ruling at the time of delivery in the event of any increase in the cost of materials, labour or transport or of any other increase in costs of any nature whether or not of the same nature as the foregoing.
d) If the Company requires further information from the Customer to enable it to perform the contract and the Company is of the opinion that there is a delay on the part of the Customer in providing such information the Company shall be entitled to extend the period for the performance of the contract by giving notice of such extensions to the customer.
e) Any time or date named by the Company or requested by the Customer for delivery of goods or completion of performance of the contract is an estimate only and the Company shall not be liable for the consequences of any delay. The period, if any, quoted for delivery of goods or completion of performance of the contract commences from the acceptance by the Company of written instructions to proceed and all necessary information to enable the Company to put work in hand. Time is not of the essence.
f) The Company will use its best endeavours to perform the contract within the time estimated, if any, or any extension thereof, but should this prove impracticable through strikes, lock-outs, failure or delay of suppliers to deliver or supply raw materials, or from any cause whatsoever beyond the Company’s control, the Company shall not be liable for any delay in the performance of the contract nor shall the Customer be entitled to rescind the contract.
g) Where no time is estimated the Customer shall accept delivery or performance within such time as the Company its agents, servants, employees, sub-contractors or shippers can arrange.
4. ADDITIONAL EXPENSE
Should the Company incur additional expenses not provided for in the quotation owing to suspension of the work on the Customer’s instructions or owing to any other circumstances whatsoever for which the Company is not responsible, such additional expense and the cost involved in keeping any of the Company’s employees on the site after completion of installation, shall be added to the price quoted and be paid for by the Customer accordingly.
5. DRAWINGS, MANUALS AND TECHNICAL SPECIFICATIONS (Supplied in ENGLISH only)
a) All descriptive and technical drawings, catalogues, illustrations and particulars of weights and dimensions submitted with a quotation are approximate only and none of these shall form part of the contract.
b) After receipt of any order adequate drawings will be supplied where necessary to enable the Customer to prepare foundations and arrange for the supply of services.
c) Drawings, manuals and technical specifications supplied by the Company are confidential and the Customer shall not communicate these or the contents thereof to third parties without the prior written consent of the Company. The English language will be used in all documentation. For additional languages an extra charge will be made.
The Company will use its best endeavours to despatch or complete within the time stated, which will run from the acceptance by the Company of a written order to proceed and of all the information and drawings necessary to enable the Company to put work in hand but shall not incur any liability for failure to do so.
7. DELIVERY AND PASSING OF PROPERTY
a) Except where otherwise stated delivery to Customer’s premises or any other location will be charged additionally to the price of the goods.
b) When delivery or collection of goods is made by the Company or carrier beyond the entrance to the Customer’s premises, the Customer shall accept all responsibility for and indemnify the Company against all damage to property or injury to persons occurring from whatsoever cause on such premises unless caused by the negligence of the Company or its servants or the carrier or his servants. It shall be the responsibility of the Customer to provide adequate labour for the loading and unloading of all goods at his premises.
c) Risk shall pass to the Customer on the equipment or materials leaving the Company’s premises.
d) Until such time as full payment is received by the Company for all goods and services whatsoever supplied by the Company to the Customer and the Customer has paid in full any other moneys owing to the Company all goods shall remain the property of the Company and the Customer shall store the goods in such a way that it is clear that they are the property of the Company.
e) The Customer’s right to possession of the goods shall cease if he(not being a company) commits an available act of bankruptcy or, if being a Company, the customer has a Receiver appointed over any of its assets or enters into liquidation (compulsory or voluntary) and the Company may at that time (without prejudice to its other rights and remedies)terminate the Customer’s right to sell the goods and recover or recall all or any of its goods in the Customer’s possession or under the Customer’s control and the Company its employees or agents is hereby irrevocably authorised to enter upon the Customer’s premises to recover the goods.
f) The Customer shall have the right to sell the goods in the ordinary course of business and shall hold any proceeds of sale in respect of goods (which shall be kept in a separate account) and any rights arising from any sale thereof as trustee for the Company.
g) All packing cases, crates and other containers except where otherwise stated are non-returnable.
8. LOSS OR DAMAGE IN TRANSIT
a) No responsibility will be accepted for any discrepancy in the quantity of goods or damage thereto in transit unless notified to the Company in writing within 7 days of receipt of the goods by the Customer. Goods damaged during transit must be kept with the packing for inspection.
b) The Company is responsible for damage in transit only if the goods are sold F.O.B.,C&F or C.I.F. as the case may be.
c) The Company should be notified forthwith if delivery on board is not affected within 14 days of the date of the advice or despatch note in the case of F.O.B. sales and within 14 days of the date of the arrival of the carrying vessel in the case of C&F or C.I.F. sales.
9. FAILURE OF SUPPLIES
If for any reason whatsoever the Company fails to supply or deliver the Customer’s requirements the Customer shall not have any claim for damage against the Company.
10. TERMS OF PAYMENT
a) Where no other terms of payment have been specified, the Company’s terms of payment are nett cash, payment in full to be made within the month following the month of invoice. No discount or allowance will be made unless specifically stated by the Company.
b) In the event of the Customer failing to comply with the Company’s terms of payment the Company reserves the right to discontinue forthwith the provision to the Customer of any further goods or services by way of installation or storage or otherwise howsoever.
c) Any sum not paid within this time period shall thereafter incur interest until the date of payment in full at a rate of 4% per annum above the base lending rate of Lloyds TSB Bank plc.
d) If any payment is not made on the due date the Company reserves the right to withdraw credit terms.
e) All prices charged are payable in pounds sterling in full and without deductions of bank charges or commission.
11. RESTRICTION ON EXPORT.
a) Due to licensing and other contractual arrangements with third parties affecting certain of the Company’s products, goods shall not be exported from the country in which they were first delivered without the prior written consent of the Company which will not be unreasonably withheld.
b) The contract shall be subject to the procurement by the Customer at his own expense of any import licence required for the import of goods into the country to which the goods are to be despatched from the United Kingdom.
c) The contract shall also be subject to the procurement by the Company at its own expense of any export licence required for the export of the goods from the United Kingdom provided that where the order is placed from an address in the United Kingdom the Customer shall be responsible at his own expense for the procurement of such a license.
a) If, by reason of instructions or lack of instructions from the Customer, despatch in accordance with the contract is delayed for 21 days after the Customer has been notified that the goods are ready for despatch the risk of loss or damage to the goods shall pass to the Customer who shall take delivery thereof or arrange for storage.
b) For the purposes of Clause 10 (Terms of Payment) the goods shall thereupon be deemed to have been delivered.
c) If and for so long as the Company’s storage facilities permit the Company may store the goods and the Customer shall pay a reasonable charge for such service.
13. REPLACEMENT AND SERVICES
a) All goods supplied by the Company are manufactured in accordance with the highest standards as to design, quality of materials and efficient workmanship, but the Company’s liability in respect of goods supplied or for any loss, injury or damage attributable to any defect in or failure of such goods shall be limited to making good by replacement or repair at the option of the Company defects which under proper use appear therein within 6 calendar months (or such other period as may be specified)after the original goods shall have first been despatched by the Company which arise solely from faulty design, materials or workmanship provided that if the Company shall so require, all such defective goods shall be promptly returned to the Company’s works carriage paid.
b) In lieu of the said right of repair or replacement the Company shall have the option to take back the said defective goods and refund the purchase price.
c) Provided further that if the goods found to be defective during the aforesaid period have been repaired or worked upon by any person other than the Company then the Company’s obligations herein shall cease forthwith.
d) In the case of goods not of the Company’s manufacture the Customer shall be entitled only to such benefits as the Company may have received under any guarantee given in respect thereof.
e) Any figures for performance of the Company’s goods are based upon the Company’s experience and are such as the Company expects to obtain by proper use.
f) The Company accepts responsibility for technical advice given by its officers or servants for which a charge is made. Technical advice made available to Customers without charge is given with all reasonable care but without responsibility on the part of the Company. In the absence of any special arrangements to the contrary it is the Customer’s responsibility to ensure that the nature, capacity and performance of the goods ordered by him are sufficient and suitable for his purpose.
g) The Customer shall accept the rights conferred under paragraphs a,b,c and d hereof in lieu of any warranty, condition or liability imposed by the common law or by statute and liability to the Customer for every form of direct or consequential loss or damage suffered by the Customer or any third party is hereby expressly excluded.
j) For sub-contract processed parts the period specified in (a) above is one week.
a) The Company endeavours not to offer for sale goods which infringe known and valid patents but shall not be liable, and no claim shall be made against it by the Customer for any damage or loss of profit arising from infringement of any patent or registered design or from any proceedings or threatened proceedings in respect of infringement of any patent or registered design by any use or sale of the goods the subject of the contract. Any condition or warranty implied under the Sale of Goods Act 1979 or otherwise limited accordingly.
b) Where the Company supplies advice to the Customer in matters of technique or supplies goods for carrying a technique into effect, the tendering of such advice or the supply of such goods carries no guarantee that such technique is free from patent restrictions nor can the Company accept any liability arising from infringement or alleged infringement of patent as a result of the Customer following the advice tendered by the Company or using such goods.
15. STATUTORY OBLIGATIONS
a) The Company will offer every co-operation in observing safe working conditions but the responsibility for the observance for the requirements of the Factories Act 1961(and any amendment or re-enactment thereof)and all other obligations the performance of which are necessary to comply with the Law of the country where the goods are installed rests with the Customer who shall indemnify the Company against all claims arising under the said Act or by reason of non-compliance with any of the said obligations and against all costs and expenses arising from any such claim.
b) The Company shall only be required to make alterations to equipment at its own expense in order to comply with the Health & Safety at Work Act 1974 where notified by the Customer in writing within 30 days of Customer’s acceptance of the goods that such alterations are necessary to meet the requirements of this Act.
16. TERMINATION FOR BREACH BY CUSTOMER.
a) If the customer shall commit any breach of any term or condition of any contract for the sale and supply of the Company’s equipment materials and services the Company shall have the right by notice in writing to terminate the contract at once notwithstanding any previous waiver of this right.
b) The Company may by notice in writing cancel the contract forthwith if the Customer becomes bankrupt or makes any composition for the benefit of creditors or being a Company goes into liquidation either voluntarily or compulsory.
c) Any termination or cancellation shall be without prejudice to any rights of either party arising prior to the date thereof.
a) Unless otherwise stated, installation is not included in the Company’s quotation but arrangements may be made at extra cost for the requisite skilled supervision of the installation or for the Company to take complete responsibility for installation.
b) In such cases the Customer shall allow the Company suitable access to and possession of the site and shall at his own expense provide proper foundations ready to receive equipment as and when delivered, adequate craneage lifting tackle and scaffolding and all labour and facilities required for unloading, handling and installing the goods.
18. LABOUR USED IN CONNECTION WITH THE CONTRACT
Any person engaged at the point of delivery on work in connection with the Contract other than employees of the Company shall be deemed to be servants or agents of the Customer.
19. INSPECTION AND TESTS
a) Any inspection of the goods by the Customer or his representative shall be made at the Company’s works or where otherwise nominated by the Company.
b) If special tests or tests in the presence of the Customer or his representative are required these must be made at the Company’s works or where required by the Company and will be charged for extra.
c) In the event of any delay on the part of the Customer or his representative in attending such tests after having received seven days notice that the Company is ready, the tests may proceed and shall then be deemed to have been made in the presence of the Customer or of his representative.
20. CATALOGUES & MANUALS – English only (other languages at extra cost)
a) While the Company takes every precaution in the preparation of catalogues, technical circulars, price lists, illustrations and other advertising matters, these are an indication only of the type of goods offered and no particulars contained therein shall be binding on the Company.
b) Such material shall be liable to change from time to time without prior notification.
21. EMPLOYEES’ LIABILITY
In making these conditions the Company does so both for itself and for and on behalf of every employee, servant or agent of the Company and the existence of a Contract shall be conclusive evidence of the agreement of the Customer that in the event of any loss or damage of any nature suffered by the Customer by reason of the negligence or default of any employee servant or agent of the Company any exemption of liability of the Company given by these conditions shall extend to every such employee servant or agent.
In case of any dispute or difference arising between the Company and the Customer as to the construction of any contract for the sale and supply of the Company’s equipment materials and services or the right duties or obligations of either party thereunder or any matter arising out of or concerning the same, every such dispute or matter in difference shall be referred to a single arbitrator or if they cannot agree upon a single arbitrator to some person appointed by the President for the time being of The Welding Institute in Cambridge, and in either case in accordance with, and subject to the provisions of the Arbitration Act 1979 or any statutory modification or re-enactment thereof for the time being in force.
24. LEGAL CONSTRUCTION.
These Conditions and any contract following thereon shall be governed and construed in accordance with English Law.
DIAMOND GROUND PRODUCTS LTD September 2013