Terms & Conditions
DEFINITIONS
In these General Conditions, the following terms shall have the meaning set forth below.
”Buyer” means any person firm company or legal entity who has entered into a Contract with the Seller for the purchase and supply of Deliverables.
”Contract” means an agreement entered into by the Buyer and the Seller for the sale and supply of deliverables, on these General Conditions and including the Seller’s order confirmation, any other agreement made in writing by the parties in relation to the Deliverables.
”Deliverables” shall mean the Goods and/or the Services, as applicable.
”Goods” shall mean the goods sold and/or delivered by the Seller to the Buyer under the Contract.
”Production Part” shall mean any Goods which has been signed-off for manufacture after Design Verification and Process Verification testing.
”Prototype Part” shall mean any Goods which is not a Production Part.
”Seller” shall mean the selling company on the documentation (quote, order confirmation or invoice) and shall be identified as Danecca Group Limited (14827922), Danecca Limited (08041334), Danecca Systems Limited (14829242) or Danecca Asset Management Limited (14848513), companies registered in England & Wales with registered offices at Unit 1142 Silverstone Park, Silverstone, NN12 8FU and includes all employees and agents of related Danecca companies.
”Services” means engineering, prototyping, testing, packing, storage and logistics services as well as any other services agreed upon between the parties to be sold and provided by the Seller to the Buyer under the Contract.
“Intellectual Property” means patents, rights to inventions, copyright and related rights, trade
marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
APPLICABILITY
1. These General Conditions shall apply on all sales and supplies of Deliverables by the Seller to the Buyer. Deviations from these General Conditions shall not apply unless agreed specifically in writing by an authorised representative of the Seller.
ORDERS
2. No Contract shall be considered as entered into until an order confirmation has been provided from the Seller to the Buyer.
3. Subject to the General Conditions, Contracts for deliverables may not be cancelled or changed without the Seller’s written consent. The Seller reserves the right to charge the Buyer for any costs and expenses incurred in relation to cancellations or changes of orders requested by the Buyer.
DELIVERY OF GOODS
4. The Buyer shall with due care make a customary inspection of the Goods upon delivery and notify the Seller in writing of any defects or shortcomings (Defects) immediately and in no case later than five (5) business days after the delivery of the Goods. The notification shall contain a description of the Defect. If the Buyer fails to notify the Seller of Defects within the above time limits, the Buyer is deemed to have accepted the Goods and it loses its right to make any claim in respect of the Defects.
PROVISION OF SERVICES
7. The Seller shall provide the agreed Services pursuant to the terms and conditions set forth in the Contract.
8. The Seller shall use its reasonable endeavours to provide the Services within the agreed timescales, but time will not be of the essence in the performance of its obligations.
9. If the Services include the storage of the Seller's property (Property) on the Buyer’s premises, any loss and damage to the Property is at the Buyer’s risk and the Buyer shall care for and insure the Property against all loss and damage. The Buyer is also not entitled to make any modifications to the Property.
10. The Seller will permit representatives of the Buyer physical access to relevant facilities of the Seller during normal working hours to inspect the Goods or Services being provided to the Seller provided that such
representatives and access arrangements are agreed in writing with the Seller at least five business days prior to the visit, (”Permitted Visitors”). The Buyer shall procure that the Permitted Visitors undertake to at all times
comply with the Seller’s instructions, policies and procedures.
11. Where the Services are to be provided by the Seller at the Buyer’s or a third party’s premises, such employees, representatives, agents, contractors etc. of the Seller as are reasonably necessary to carry out the Services, as notified to the Buyer, shall be permitted
access to such premises during working hours or otherwise at agreed times for the purpose of providing the Services. The Buyer is responsible for securing that such premises fulfill the requirements necessary for the provisions of the Services and otherwise comply with all
applicable laws and regulations, including but not limited to health and safety requirements. The Seller shall be entitled to delay the provision of the Services if the Buyer fails to comply with this clause and the Seller shall be entitled to charge the Buyer for any additional costs incurred by the Seller arising from the delay.
12. On Completion of the Services the Seller shall have no obligations to provide the Buyer with any further Services.
13. For the avoidance of doubt, the Seller has no liability for failure in providing the Services (including delay in delivery) to the extent the failure is directly or indirectly attributable to the Buyer (including its employees and representatives) or any third party engaged by the Buyer.
14. The Buyer agrees to defend, indemnify and hold harmless the Seller and its employees and
representatives from and against any and all claims, loss, damage, cost or expense resulting from breach of or other non-compliance with applicable rules and regulations, the Seller’s instructions in relation to Deliverables, or the general misuse of any Deliverables, including but not limited to, death, personal injury, bodily injury and damage to property and the environment.
PRICE
15. The applicable prices for the Deliverables are as set out in the Contract. All prices are net taxes, VAT, customs duties and other similar levies or costs, unless otherwise provided in the agreed delivery term or in the Contract.
16. The Seller reserves the right, by giving written notice to the Buyer at any time before
delivery or provision, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including, 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 and Services which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
PAYMENT
17. The Seller shall invoice the Buyer for the price of the Goods and Services on or at any time after delivery of the Goods and/or the Provision of the Services (as applicable), unless, in the case of Goods, 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.
18. The Seller shall pay invoices within thirty (30) days from the date of invoice. Payment shall be made to the bank account nominated in writing by the Seller 19. The Seller shall pay interest on overdue sums from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 2% a month above the Bank of England's base rate from time to time.
20. If the Buyer fails to pay by the due date, the Seller may suspend further performance of its
contractual obligations until full payment of all outstanding invoices are made. If the Buyer has failed to pay the amount due within 60 days after the due date, the Seller may terminate the Contract by giving written notice to the Buyer. The Seller shall furthermore be entitled to full payment for the Deliverables even if it has not been delivered in full and, in addition, to interest on late payment as well as to claim compensation for all the losses suffered.
RETENTION OF TITLE
21. The Goods shall remain the property of the Seller until paid for in full.
ASSIGNMENT
22. The Seller may assign the Contract or any part of it to any person, firm or company without the prior consent of the Buyer.
23. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
INTELLECTUAL PROPERTY
24. All Intellectual Property in or arising out of or in connection with the Deliverables shall at all times be owned by or the property of the Seller. Unless it is otherwise agreed in writing between the parties, nothing in the Contract shall be construed as transferring any Intellectual Property in connection with the sale and delivery of the Deliverables.
DELAYED DELIVERY OF DELIVERABLES
25. All delivery dates for Deliverables shall be estimates only and time shall not be of the essence. If the Seller determines that it will not be able to meet agreed delivery dates it shall notify the Buyer thereof in writing, stating the cause of the delay and indicating a revised date
26. Should a delivery or part-delivery of Deliverables be delayed because the Seller has
materially breached its obligations in the Contract, the Buyer shall be entitled to cancel the Contract upon giving written notice thereof to the Seller. Such right of cancellation may only be applied by the Seller if the delay arises from the Buyer’s material breach of the Contract which, if capable of remedy, the Buyer has failed to rectify within 14 days of written notification from the Seller.
27. If the Buyer does not take delivery of the Goods on the agreed delivery date, the Buyer is liable and shall be charged for all costs, losses and expenses incurred by the Seller including insurance and storage costs until actual delivery takes place, The Seller may also, at its sole discretion, terminate the Contract and/or claim damages for cost, loss and expense suffered in relation thereto
LIABILITY FOR DEFECTS IN GOODS
28. The Seller undertakes to deliver the Goods in the condition agreed to between the parties.
29. Prototype Parts might include deviations in design materials, workmanship and/or performance in relation to the specifications of the Production Parts for which the Seller assumes no liability in Prototype Parts.
30. The Seller undertakes to deliver Production Parts free from faulty design, materials and workmanship in relation to the specifications of the Production Parts.
31. The Production Parts shall be regarded as defective if not in compliance with clause 29. In case of defective Production Parts the Seller shall remedy the defect by way of (at the Seller’s choice) either repairing
or replacing the Production Parts at the Seller’s own cost or by refunding the purchase price paid to the Seller for such defective Production Parts
32. The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any willful damage, negligence, subjection to normal conditions, failure to follow the Seller’s instructions (whether given
orally or in writing), misuse or alteration of the Goods without the Seller’s prior approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
33. The Seller’s liability for defects does not cover defects caused by circumstances, which arise after the risk has passed to the Buyer, nor does it cover normal wear and tear or deterioration. Furthermore, the Seller’s
liability does not cover defects due to mishandling, misuse or otherwise attributable to the Buyer or third parties.
34. The Seller’s liability is limited to defects which appear within a period of three (3) months from the date of delivery of the Goods, unless the Goods is intended to be used within a shorter period of time in which case the liability is limited to defects which appear within the intended period of use. For parts of the Goods, which have been repaired or replaced under clause 30, the Seller shall have the same liability for defects as for the original Goods for a period of three (3) months. For other parts of the Goods, the liability period referred to in the first sentence of this clause shall be extended only by the period during which the Goods could not be used due to a defect for which the Seller is liable. Regardless of the provisions of clauses 30- 37, the Seller shall have no liability for defects in any part of the Goods or any claim, cost, damage or expense related thereto for more than two (2) years from the original delivery date. In addition, the Seller shall have no liability what so ever for any defects in any Goods or any claim, cost, damage or expense related thereto (i) if Goods is used outside of its
specification and/or usage guidelines, (ii) if Goods in any way or part is used for or in applications for which the Goods is not originally intended, or (iii) the Goods in any other way is used in breach of the Seller’s instructions or for any other purpose than the Goods was originally delivered for.
35. After receipt of a written notice under clause 4 for Production Parts, the Seller shall remedy the defect without undue delay. The Seller shall bear the costs as specified in clauses 31- 38. Remedial work shall be carried out at a location of the Seller’s choice. If the Buyer gives such
notice as referred to in clause 4, and no defect is found for which the Seller is liable, the Seller shall be entitled to compensation for work and costs incurred as a result of the notice.
36. If remedy of the defect in the Goods requires intervention in other equipment than the Goods, the Buyer shall be responsible for any work or costs caused thereby.
37. All packaging, packing and transports in connection with repair or replacement of Goods shall be at the Buyer’s risk and expense. The Buyer shall follow the Seller’s instructions regarding how the transport shall be carried out.
38. No Goods may be returned to the Seller without the prior agreement in writing of the Seller.
39. The Seller shall have no liability for defects save as expressly set forth in clauses 31- 38.
LIMITATION OF LIABILITY
40. The Seller shall have no liability for damage to property or physical persons caused by any Deliverable. If a third party lodges a claim for compensation against the Seller or the Buyer for loss or damage referred to in this clause, the other party shall forthwith be notified thereof in writing.
41. It is acknowledged and agreed that the representations and warranties set forth in these General Conditions in relation to the sale and supply of the Deliverables are exclusive and in lieu of all warranties of quality and performance, written, oral or implied, whether in contract tort, negligence, strict liability or otherwise. All other representations or warranties, including but not limited to any future performance warranties and any implied warranties of merchantability and fitness for a particular purpose, are hereby disclaimed.
42. In no event shall the Seller be liable for any consequential or indirect damages, including, but not limited to, costs for third parties (e.g. end customers), loss of profit, loss of goodwill, cost of capital and costs incurred in connection with substitute sources of supply. Furthermore, in no
event shall the aggregate liabilities of the Seller exceed the purchase price actually paid by the Buyer to the Seller with respect to the Deliverables in question.
GROUND FOR RELIEF (FORCE MAJEURE)
43. The following circumstances shall constitute grounds for relief if they impede the performance of the Contract or makes performance unreasonably onerous and could not reasonably be foreseen: industrial disputes and any other circumstance beyond the control of the parties, such as fire, war, mobilisation or military call up of a comparable scope, requisition, seizure, trade and currency restrictions, insurrection and civil commotion, pandemics, shortage of transport, general shortage of materials, restrictions in the supply of power and defects or delays in deliveries by subcontractors caused by any such circumstance as referred to in this clause.
44. The party wishing to claim relief under clause 44 shall without delay notify the other party in writing on the intervention and on the cessation of
such circumstance. If grounds for relief prevent the Buyer from fulfilling its obligations, the Buyer shall reimburse the expenses incurred by the Seller in securing and protecting the Goods.
45. Notwithstanding other provisions of these General Conditions, either party shall be entitled to terminate the Contract by notice in writing to the
other party, if performance of the Contract is delayed more than twelve months by reason of any grounds for relief as described in clause 43 .
CONFIDENTIALITY
46. All information exchanged or otherwise transferred between the parties during the term of the Contract shall be treated as confidential, not be disclosed to any third parties, subject to clause 47 and only used for the purposes of the Contract.
47. The parties may disclose any Confidential Information to subcontractors, suppliers, governmental or other authority or regulatory body to such extent only as is necessary for the fulfillment of the Contract, or as required by law
48. The provisions of clauses 46-47 shall continue in force for five (5) years after the term of the Contract notwithstanding the termination of the Contract for any reason.
WAIVER
49. The parties agree that no failure by either Party to enforce the performance of any provision in these General Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
SEVERANCE
50. The parties agree that, in the event that one or more of the provisions of these General Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these General Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable
THIRD PARTY RIGHTS
51. A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
DISPUTES, APPLICABLE LAW
52. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
53. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter
DATA PROTECTION
54. Data subject to data protection laws may be provided by the Buyer to the Seller and will in such case be processed by the Seller in order to manage the existing business relationship between the Buyer and the Seller, to provide the Deliverables and related products and services, and for administrative and marketing purposes. The Seller shall only process the data in accordance with applicable law. Upon written request the Seller
will correct any data that is incorrect, incomplete or misleading. The Seller will also, once per year and free of charge upon written request, give information on what personal data that is processed about the requesting registered company or person.
55. Should the Seller under applicable law be considered as a personal data processor on behalf of the Buyer, the Seller undertakes to take appropriate technical and organisational measures to protect the data as required by applicable law.
56. Both parties will comply with all applicable requirements of data protection legislation in relation to any personal data processed pursuant to the operation of the Contract.