GENERAL TERMS AND CONDITIONS OF SALE
All contracts for the sale of goods made by or on behalf of DYNAMIC BATTERY SERVICES LIMITED (“the seller”) are subject to the following terms and conditions:
In these terms and conditions
“CONDITIONS” means the terms and conditions and includes any special terms and conditions agreed in writing between the Customer and the Seller;
“CONTRACT” means the contract for the sale of the goods;
“CUSTOMER” means the person so described in the order;
“DELIVERY ADDRESS” means the delivery address stated in the order;
“GOODS” means the goods described in the order;
“ORDER” means the Customer’s purchase order;
“PRICE” means the price of the goods;
These conditions apply to all sales of the goods by the seller to the customer and shall apply in place of and prevail over any terms and conditions contained or referred to in the customer’s order or in correspondence or elsewhere or implied by trade custom practice or course of dealing and any purported provisions to the contrary are hereby excluded. No variation of the terms of these conditions shall be binding upon the seller unless made in writing and signed by a Director of the seller.
3 TERMS OF PAYMENT
The seller shall be entitled at its discretion to give credit facilities to the customer in accordance with the provisions of Condition 4 below. Payment of invoices shall be made to the seller in full (without any deductions or set off) not later than the twenty-eight day following the date of this invoice.
4 CREDIT FACILITIES
4.1 The customer undertakes to supply all documents, information, including banking
details and references that the seller reasonably requires to consider a credit
application and warrants that the contents of all documents, information and
references to be so provided shall be true and correct.
4.2 The seller reserves the right to review the extent, nature and duration of the
customer’s credit facilities at all times and reserves the right to withdraw such
credit facilities at any time without prior notice.
4.3 Any extension of credit allowed to the customer may be changed or withdrawn at any
4.4 If in the opinion of the seller the credit-worthiness of the customer shall have
deteriorated prior to delivery the seller may require full or partial payment of the price
prior to delivery.
4.5 The seller reserves the right to refuse to fulfil an order if the customer’s account is
overdue for payment.
5 FAILURE TO MAKE PAYMENT
If the customer does not pay on the date specified above the seller shall be entitled, without prejudice to any other right or remedy it may have, to terminate this contract, cancel or suspend any further deliveries to the customer under any order and/or charge the customer interest on the amount unpaid from the due date until payment is made in full at the rate of 4% above Barclays Bank plc. base lending rate for the time being in force.
6 GOODS AND PRICES
Prices of the goods shall be those contained in the seller’s list prices from time to time. The seller shall have the right at any time on giving reasonable notice to the customer, to change its prices and/or to withdraw the goods from the range of products offered by the seller.
Orders must be made or confirmed in writing by the customer and are in all cases subject to written acceptance by the seller. If any written confirmation of an oral or telephone order by the customer does not expressly and prominently state that it is a confirmation of an existing order the customer shall be responsible for any consequent duplication of the said existing order and shall pay the seller a handling charge equal to twenty per cent of the net list price of the goods plus all carriage costs arising from the delivery or return of the said goods.
8.1 The seller shall endeavour to fulfil all orders which may from time to time be placed on
it by the customer and shall endeavour to comply with delivery dates quoted but time
for delivery shall not be of the essence and the seller shall not be liable for any failure,
delay or error in delivery nor shall it be liable for any consequential loss arising
therefrom, however, caused.
8.2 Delivery shall take place:
8.2.1 In the case of delivery ex-works, as soon as the goods are made available for
collection by the customer or its agent or other representative at the premises of the
8.2.2 In the case of delivery to the delivery address as soon as a delivery note signed by
the customer acknowledging receipt of the goods.
9 REFUSAL OR FAILURE TO TAKE DELIVERY
If the customer fails to take delivery of the goods or fails to give the seller adequate delivery
instructions at the time stated for delivery (otherwise than by reason of any cause beyond the
customer’s reasonable control or by reason of the customer’s fault), then, without prejudice to any other right or remedy available to the seller, the seller may:
9.1 Store the goods until actual delivery and charge the customer for the reasonable
costs of storage; or
9.2 Sell the goods at the best price readily obtainable and (after deducting all reasonable
storage and selling expenses) account to the customer for the excess over the price
under the order or charge the customer for any shortfall below the price under this
9.3 Terminate this contract with immediate effect and recover from the customer any loss
and additional costs incurred as a result of such refusal or failure.
It shall be the responsibility of the customer to inspect and check the goods immediately on delivery to ensure that the quality, condition and specification of the goods conform to the instructions contained in the customer’s order. The customer’s responsibility to inspect the goods shall not be in any way diminished or extinguished in the case of goods which are delivered to a third party on the instructions of the customer.
11 RISK AND INSURANCE
The risk in the goods shall pass to the customer:
11.1 On delivery to the delivery address; or
11.2 When delivered into the possession or custody of a carrier, forwarding agent,
warehouseman or other bailee or agent for the purpose of transmission to the
customer whether or not such person is in contact with or instructed by the
seller and/or customer; or
11.3 When the goods are made available by the seller at its premises for collection by the
customer or its agent whichever is earlier
11.4 The customer shall be responsible for taking out and maintaining appropriate
insurance cover for loss or destruction to the goods after delivery takes place in
accordance with these conditions.
Notwithstanding delivery and the passing of risk, property in the goods shall remain in the seller until the seller receives payment in full or on behalf of the customer of all sums (whether in respect of the goods or otherwise howsoever) due owing or incurred. Property in the goods shall pass to the customer at the time when such payment is received from the customer by the seller (and not earlier).
Until property in the goods passes to the customer, the customer shall be the bailee of the goods for the seller and shall store the goods securely, safely and separately from the customer’s own goods or those of any other person and in a manner which makes them readily identifiable as the goods of the seller. The customer shall ensure that the goods can be identified by a reference to corresponding invoice numbers. The seller’s consent to the customer’s possession of the goods and any right the customer may have to possession of the goods shall cease at whichever is the earliest of the following events:
(i) If any sum (whether in respect of the goods or otherwise howsoever) is not paid to the
seller by or on behalf of the customer on or before the date when it is due;
(ii) If the customer not being a company, applies for an interim order or proposes a
voluntary arrangement with its creditors (under part VIII of the Insolvency Act 1986)
or does or fails to do anything which would entitle a petition for bankruptcy order to be
(iii) If the customer, being a company, does or fails to do anything which would entitle any
person to appoint a receiver of the whole or any part of the customer’s assets or
which would entitle any person to present a petition for an administration order or the
winding up of the customer.
The seller may for the purpose of inspecting or recovering the goods enter upon any premises where they are stored or where the seller reasonably believes them to be stored.
13.1 The seller shall not be liable to the customer-
13.1.1 For shortfalls in quantity delivered unless the customer notifies the seller in writing of
any claim for shortfalls in quantity within fourteen days of the date of the seller’s
invoice for the goods;
13.1.2 For damage to or loss of the goods or any part thereof in transit where the goods are
carried by the seller’s own transport or by a carrier on behalf of the seller unless the
customer shall notify the seller of any such claim in writing within fourteen days of the
date of the seller’s invoice for the goods and in the case of goods all or any part of
which are received damaged, unless the customer shall sign for them as damaged
and shall immediately notify the seller of the damage in writing. Goods returned under
this condition and found by the seller not to be defective shall be returned to the
customer at the customer’s expense and the customer shall in addition pay to the
seller a handling charge which shall represent 20% of the value of the price of the
goods. Such charge is to cover the cost of testing of the goods by the seller.
13.1.3 For defects in the goods caused by fair wear and tear, abnormal conditions of storage
or use or the application of any treatment or process whatsoever to the goods after
purchase or any act, neglect or default of the customer or of any third party;
13.1.4 For other defects in the goods unless notified to the seller within twenty-eight days of
the date of the seller’s invoice for the goods.
13.2 Where liability is accepted by the seller under condition 13(1) the seller’s only
obligation shall be at its option to make good any shortage or non-delivery and/or
as appropriate to replace or repair the goods found to be damaged or defective and/or
to refund the cost of the goods to the customer.
13.2.1 The seller’s aggregate liability to the customer whether for negligence, breach of
contract, misrepresentation or otherwise shall in no circumstances exceed the invoice
value of the goods.
13.3 Subject to the foregoing all other conditions warranties and representations expressed
or implied by statute, common law or otherwise in relation to the goods are hereby
expressly excluded and the seller shall be under no liability to the customer for any
loss or damage or injury direct or indirect resulting from defective material, faulty
workmanship or otherwise howsoever arising and whether or not caused by the
negligence of the seller, its employees or agents SAVE THAT the seller shall accept
liability for death or personal injury caused by negligence of the seller.
13.4 The seller’s prices are determined on the basis of the limits of liability set out in this
condition. The customer may by written notice to the seller request the seller to agree
a higher limit of liability provided insurance cover can be obtained therefore.
14 INSOLVENCY AND DEFAULT
14.1 If the customer enters into a deed or arrangement or commits an act of bankruptcy or
compounds with its creditors or if a receiving order is made against him or if (being
a company) an order is made or a resolution is passed for the winding up of the
customer (otherwise than for the purposes of amalgamation or reconstruction
previously approved in writing by the seller) or if a receiver is appointed or any of the
customer’s assets or undertaking or if circumstances arise which entitle the court or a
creditor to appoint a receiver or manager or which entitle the court to make a winding
up order or if the customer takes or suffers any similar or analogous action in
consequence of debt or commits any breach of this or any other contract between the
seller and the customer, the seller may without prejudice to any of its other rights
under these conditions stop any goods in transit and/or suspend further deliveries
forthwith and/or by notice in writing to the customer terminate the contract.
14.2 In addition, the customer shall pay to the seller an amount equivalent to 20% of the
value of the undelivered goods which were the subject of a previous order plus the
value of the goods delivered and the cost of all labour accumulated on unfinished
goods. These costs form a genuine pre estimate of the damages which the seller
shall suffer on termination of the contract by either party.
No waiver by the seller of any breach of the contract by the customer shall be construed as a waiver of any subsequent breach of the same or any other provision.
Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class post or fax to the party concerned at its last known address. Notice sent by first class post shall be deemed to have been given seven days after despatch and notices sent by telex or fax shall be deemed to have been given on the date of despatch.
17 GOVERNING LAW AND JURISDICTION
These conditions shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the non-exclusive jurisdiction of the English courts.
If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
19 FORCE MAJEURE
Neither the seller nor the customer shall be liable to the other 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 goods if the delay or failure was beyond that party’s control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control.
19.1 Act of God, explosion, flood, tempest, fire or accident
19.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition
19.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the
part of any governmental, parliamentary or local authority;
19.4 Strikes, lock-outs or other individual actions or trade disputes (whether involving
employees or either the seller or the customer or of a third party).
The seller shall be entitled at its own discretion to assign to any other person any or all of its obligations contained in these conditions provided reasonable notice thereof is given in writing to the customer.
21 LEGAL COSTS
The customer shall pay all legal costs incurred by the seller in respect of any dispute arising between the parties under these conditions.