1 Interpretation and Definitions
Any reference in these Conditions to any statute, law, statutory instrument, regulation or other similar instrument having the force of law shall be deemed to include any lawful amendment, re- enactment, extension, replacement, modification, consolidation and/or repeal thereof. Any reference to the singular shall include the plural and vice versa and any reference to one gender shall include all genders including the neuter gender. In these Conditions (unless the context otherwise requires) the following terms have the meanings set out below:
Dantec's current catalogue at the time of an order featuring Products for sale by Dantec;
the terms and conditions of sale set out in this document;
the agreement between Dantec and the Buyer for the sale and purchase of the Products;
means Dantec Limited (company number 01057158) whose registered office is at Tarran Way Moreton Wirral CH46 4TL;
the address for delivery of the Products which shall be as specified by the Buyer on relevant purchase orders and as acknowledged by Dantec on Dantec’s sales order acknowledgement document
Dantec's buyer who agrees to purchase the Products from Dantec subject to these Conditions whose details may be set out overleaf;
"Estimated Delivery Date"
the date on which Dantec estimates that the Products will be ready for delivery which may be set out overleaf;
the goods which Dantec is to supply to the Buyer in accordance with these Conditions and which may be listed overleaf;
Dantec's list containing Products featured in back catalogues.
2 Basis of Sale
2.1 These Conditions apply to all contracts for the sale of goods to a Buyer entered into by Dantec. By placing an order with Dantec or accepting Dantec's quotation, the Buyer agrees to deal with Dantec on these Conditions to the exclusion of all other terms, conditions, warranties or representations with the exception of any terms specified in writing overleaf.
2.2 No variation to these Conditions shall be binding unless made in writing specifying both which clause is to be varied and full details of such variation and signed on behalf of each of the Buyer and Dantec.
2.3 Dantec's employees or agents are not authorised to make any representations concerning the Products unless confirmed by Dantec in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed. The Buyer irrevocably and unconditionally waives any right it may have to claim damages for and/or to rescind the Contract as a result of any misrepresentation whether or not contained in the Contract unless such misrepresentation was made fraudulently.
2.4 Any advice or recommendation given by Dantec or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by Dantec is followed or acted upon entirely at the Buyer's own risk and accordingly Dantec shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 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 Dantec shall be subject to correction without any liability on the part of Dantec.
3 Sale and Purchase
3.1 The Buyer agrees to purchase the Products from Dantec and Dantec agrees to sell the Products to the Buyer.
3.2 The Buyer shall not be entitled to cancel in whole or in part any order which Dantec has accepted or any quotation of Dantec which the Buyer has accepted in either case whether orally or in writing.
3.3 If, at the request of the Buyer, Dantec manufactures or supplies Products otherwise than in accordance with the Products' specification or description as set out in the Catalogue or as appropriate Product List or if the Products are marked with any trade mark at the request of the Buyer, the Buyer shall indemnify Dantec against all loss, damages, costs and expenses awarded against or incurred by Dantec in connection with or paid or agreed to be paid by Dantec in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights or misuse of any confidential information of any other person or any other liability whatsoever which results from Dantec's use of the Buyer's specifications or the marking of the Products or from the sale or supply of such Products by Dantec pursuant to the provisions of clause 4.6 below.
3.4 Dantec may, at any time, by notice to the Buyer withdraw from sale or cease to manufacture any Product and Dantec shall incur no liability whatsoever to the Buyer in so doing. The Buyer acknowledges that due to continuous product development, Products supplied may differ slightly from those illustrated in the Catalogue or a Product List and that colours illustrated are subject to the normal limitations of reproduction and presentation. External measurements and capacities quoted are approximate.
3.5 Dantec further reserves the right to make any changes in the specifications of the Products which are required to conform with any applicable safety or other requirements or which do not materially affect their quality or performance.
4.1 Subject to Clause 4.3 delivery shall be effected at the Delivery Address and Dantec shall use its reasonable efforts to deliver the Products to the Buyer at the Delivery Address on or around the Estimated Delivery Date as acknowledged on the Dantec sales order acknowledgement document, but time of delivery shall not be of the essence.
4.2 Dantec shall be entitled to deliver the Products in instalments in which case each instalment shall be treated as an entirely separate contract and any default or breach by Dantec in respect of any such instalment shall not entitle the Buyer to cancel any other instalment or treat the Contract as a whole as repudiated.
4.3 If Products are delivered by agreement to an address other than the Delivery Address then delivery shall take effect when the Products are off-loaded by Dantec or as appropriate the carrier at that agreed address and if Products are damaged on delivery or if less than the correct amount of the Products is delivered, then unless the Buyer notifies Dantec or where appropriate the carrier (otherwise than by a note on the delivery note) within three (3) days of delivery no claim against Dantec may be made in respect of damage to or short delivery of such Products.
4.4 If the Products have not been delivered despite receipt by the Buyer of the invoice from Dantec relating to them, then unless the Buyer notifies Dantec within seven days after the date of such invoice no claim against Dantec may be made in respect of non-delivery of those Products.
4.5 The Buyer shall be deemed to accept the Products on delivery notwithstanding any late delivery by Dantec.
4.6 If the Buyer fails to take delivery of the Products or fails to give Dantec adequate delivery instructions before the Estimated Delivery Date, then, without prejudice to any other right or remedy available to Dantec, Dantec may:-
4.6.1 store the Products until actual delivery is made and charge the Buyer for the costs (including insurance) of storage; and/or
4.6.2 sell or supply the Products (whether or not such Products were manufactured or marked by Dantec pursuant to the provisions of clause 3.3 above) to a third party in any country at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract and in either case shall be entitled to charge interest (both before and after any judgment) on the price payable for the Products under the Contract at 8% over the base rate from time to time of HSBC PLC from the Estimated Delivery Date to the date of actual delivery.
5 Prices and Payment
5.1 The price of the Products shall be the price set out overleaf or, if not specified, the price quoted by Dantec or, if not specified and no price has been quoted (or a quoted price is no longer valid), the price will be the price listed in the Catalogue or the Product List. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by Dantec without giving notice to the Buyer.
5.2 Dantec reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to Dantec which is due to any factor beyond its control, any change in delivery dates, quantities or specifications for the Products which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give Dantec adequate information or instructions.
5.3 Unless otherwise stated overleaf or under the terms of any quotation or in any price list of Dantec, all prices are given by Dantec on an ex works basis, and the Buyer shall be liable to pay Dantec's charges for (where applicable) transport, packaging and insurance together with any additional expenses, licence fees, currency fluctuation related costs or duties paid or incurred by Dantec as a result of the Delivery Address being outside the UK.
5.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to Dantec.
5.5 Dantec shall be entitled to invoice the Buyer for all amounts due under the Contract on or at any time after delivery of the Products and where the Buyer wrongly fails to take delivery Dantec shall be entitled to invoice the Buyer at any time after Dantec has notified the Buyer that the Products are ready for collection or (as the case may be) Dantec has tendered delivery of the Products.
5.6 A deposit for each order may be required to be paid by the Buyer at the time of placing the order, in which case the balance of the price shall be invoiced for payment on delivery. Where no deposit is required from the Buyer, the Buyer shall make payment in full upon delivery unless Dantec has agreed credit terms in which case the Buyer shall make payment to Dantec in respect of all invoices in full and without any deduction or set off (whether in relation to such invoice or otherwise) within 60 days of the date of the invoice. Time of payment shall be of the essence.
5.7 All payments shall be applied to invoices and to Products listed in such invoices in the order determined in its discretion by Dantec.
5.8 If full payment is not received by Dantec by the due date then without prejudice to its rights Dantec shall be entitled:-
5.8.1 to sue for the entire price; and/or
5.8.2 to charge interest (both before and after any judgment) at the rate of 4% over the base rate from time to time of HSBC PLC on the outstanding balance; and/or
5.8.3 to require the immediate return to Dantec of all goods agreed to be sold by Dantec to the Buyer in which the property has not passed to the Buyer in accordance with the provisions of clause 7 below and the Buyer hereby agrees to reimburse to Dantec upon demand Dantec's costs or expenses in recovering such goods.
6 Warranty and Liability
6.1 Dantec warrants that the Products will be free from defects in material and workmanship for a period of twelve months from the date of delivery PROVIDED THAT:-
6.1.1 Dantec shall be under no liability in respect of any defects in the Products arising from any drawing, design or specifications supplied by the Buyer;
6.1.2 Dantec shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence by the Buyer or persons using the Products, abnormal working conditions, failure to follow Dantec's instructions (whether oral or in writing), or misuse or alteration or repair of the Products without Dantec's approval;
6.1.3 Dantec shall be under no liability whatsoever if the total price of the Products has not been paid by the due date for payment;
6.1.4 any such defect in or failure to meet any such specification by the Products shall be notified to Dantec in writing as soon as reasonably possible after the Buyer discovers such defect or non-conformity; and
6.1.5 the above warranty does not extend to parts, materials or equipment not manufactured by Dantec, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Dantec and which Dantec hereby assigns to the Buyer so far as it is able;
6.1.6 The product supplied is inspected by a competent person on a regular basis as appropriate.
6.2 Except as set out in these Conditions, Dantec makes and the Buyer receives no warranties, conditions or representations, express or implied, statutory or otherwise, and without limitation implied terms relating to satisfactory quality and fitness for a particular purpose are excluded.
6.3 Should any valid claim under clause 6.1 above be made by the Buyer, Dantec shall be entitled to replace or repair the Products (or the part in question) free of charge or, at Dantec's sole discretion, refund to the Buyer the price of the Products (or a proportionate part of the price as appropriate) but Dantec shall have no further liability to the Buyer.
6.4 Dantec does not seek to exclude or limit its liability for death or personal injury resulting from negligence of or fraudulent misrepresentation by Dantec or its employees or any other liability which under English law it is not permitted to limit or exclude.
6.5 Dantec shall not be deemed to be in breach of this agreement, or otherwise be liable to the Buyer, by reason of any delay in performance, or non-performance, of any of its obligations under this agreement to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the buyer; and the time for performance of that obligation shall be extended accordingly.
6.6 Except pursuant to sub-clause 6.4 above:
6.6.1 Dantec shall not in any event be liable for any indirect, special or consequential loss (including pollution) or damages, howsoever arising, or in respect of any loss of profits or wasted overheads or similar costs in connection with or arising out of the furnishing, functioning or use of the Products, or any item or service provided, and shall not be liable for any other damages except as provided herein;
6.6.2 in no event shall Dantec's liability in respect of any of the Products exceed the price paid for those Products; and
6.6.3 no action, regardless of form, arising out of the transactions under the Contract may be brought by the Buyer more than two years after the cause of action has accrued.
6.7 Buyer shall at its expense defend any action against Dantec based on a claim that customisation of a Product or the manufacture or modification of a Product in accordance with Buyer’s instructions constitutes an infringement of the Intellectual Property Rights of any third party (a "Buyer’s Claim") provided that:
6.7.1 Dantec shall promptly notify Buyer in writing of any Buyer's Claim of which it becomes aware and shall provide Buyer with full and accurate details of the same;
6.7.2 Buyer shall have the sole control of the defence of any action on all Buyer‘s Claims and all negotiations for settlement or compromise;
6.7.3 Dantec shall make no admissions or compromises in relation to the same; and
6.7.4 Dantec shall allow its name to be used in proceedings if necessary and shall provide all reasonable assistance in defending any action.
Buyer will pay all damages and costs awarded against Dantec as a result of any action based on a Buyer’s Claim.
7 Risk and Title
7.1 Risk of loss of or damage to the Products shall pass to the Buyer on delivery and the Buyer shall insure the Products from that time until ownership of and title to them passes to the Buyer.
7.2 Notwithstanding delivery and the passing of risk in the Products to the Buyer, or any other provisions of these conditions, ownership of and title to the Products shall not pass to the Buyer and shall be retained by Dantec until Dantec has received in cash or cleared funds payment in full of the price of the Products and of the price of any other goods supplied to the Buyer by Dantec at any time whether or not the price has become due.
7.3 Until ownership of and title to all goods owned by Dantec passes to the Buyer, the Buyer shall hold the goods in the Buyer's possession or control as Dantec's fiduciary agent and bailee and shall keep them separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Dantec's property. The Buyer shall be entitled to resell or use such goods in the ordinary course of its business but shall account to Dantec for the entire proceeds of sale or otherwise of such goods whether tangible or intangible, including insurance proceeds, and shall keep all such amounts separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured. The Buyer shall maintain records of the persons to whom it sells or disposes of such goods and of the payments made by such persons for such goods and will allow Dantec to inspect those records and the goods themselves on request. Dantec shall be entitled to trace the proceeds of sale or otherwise of such goods.
7.4 For the avoidance of doubt, the Products, all other goods supplied to the Buyer by Dantec and all goods into which the Products or such other goods may have been incorporated which are in the Buyer's possession shall be presumed to belong to Dantec unless the Buyer can prove otherwise.
7.5 Until ownership of and title to any goods owned by Dantec passes to the Buyer (and providing the goods are still in existence and have not been resold), Dantec shall be entitled at any time to require the Buyer to deliver up such goods to Dantec and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where such goods are stored and repossess them. The Buyer shall procure that any third party which holds such goods shall permit Dantec to take possession of them and shall indemnify Dantec against any liability which it may incur to such third party in connection with taking or attempting to take possession of them. Dantec shall be entitled to use or dispose of such goods as it wishes. Unless Dantec expressly elects otherwise any contract between it and the Buyer for the supply of the Products shall remain in existence notwithstanding any exercise by Dantec of any of its rights under this clause.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any goods which remain the property of Dantec, but if the Buyer does so, all monies owing by the Buyer to Dantec shall (without prejudice to any other right or remedy of Dantec) forthwith become due and payable.
7.7 The Buyer acknowledges that the allocation of risk in these conditions reflects the price paid for the Products and any discounts applied by Dantec.
8.1 The Buyer shall comply with all laws and regulations relating to the ownership and use of the Products including but not limited to health and safety requirements, export control and such similar measures and for the avoidance of doubt, the Buyer shall be responsible for obtaining and bearing the cost of any import or export licences, as applicable.
8.2 The remedies available to Dantec under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Buyer.
8.3 The failure or delay of Dantec to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect either party's right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
8.4 The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
8.5 Any notice required to be served under these Conditions shall be in writing delivered personally or sent by first class pre-paid post to the address of the recipient (or to such other address as has been notified to the sender as the proper address for service). Any such notice shall be deemed properly served, in the case of personal delivery on delivery and in the case of posting two Working Days after the date of posting or, if sent by recorded delivery mail and returned marked "gone away" or to the like effect, on return of such recorded delivery mail.
8.6 The Contract is personal to the Buyer and the Buyer may not assign, transfer, sub-contract or otherwise part with the Contract or any right or obligation under it without the prior written consent of Dantec.
8.7 These Conditions form the entire agreement between Dantec and the Buyer and no variation or amendment thereof shall be effective unless in writing signed by authorised representatives of the parties.
8.8 The construction, validity and performance of the Contract is governed by the law of England and the parties accept the exclusive jurisdiction of the English Courts.