In these conditions: a. the "Seller" means DWS Advantage; b. the "Buyer" means the person, firm or company who places an order with the Seller for the purchase and/or supply of any Goods or service; c. the "Goods" means the products or services supplied by the Seller which are the subject of an order placed by the Buyer with the Seller. d. the "Contract" means any contract between the Buyer and the Seller for the sale and purchase of Goods, incorporating these conditions.
2. Contractual Terms
These conditions shall apply to all contracts for the sale of Goods entered into by the Seller to the exclusion of the terms and conditions of the Buyer. a. All drawings, illustrations, performance data and other details in the Seller's catalogues, sales or promotional literature or elsewhere are included as a guide only, and whilst such details are printed in good faith they shall not bind the Seller. The Seller reserves the right to change specifications without prior notice at its absolute discretion. b. No variation, cancellation or waiver of these conditions shall be of any effect unless made in writing signed by a duly authorized officer of the Seller and the Buyer. c. Typographical or clerical errors or omissions shall be subject to correction. d. The Buyer must notify the Seller within seven days of the date of the Seller's acceptance or acknowledgement of order if such acceptance or acknowledgement does not accurately confirm the Buyer's order failing which the Buyer shall be bound by the terms of the acknowledgement. e. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller's liability for fraudulent misrepresentation.
3. Creation Of Contractual Relations
Unless previously withdrawn the Seller's quotations and tenders shall remain valid for the period stated therein or if no period is stated for 30 days from the date of the quotation or tender. The Seller's offers, estimates, quotations, tenders, and price lists are invitations to treat only. All orders, must be in writing and must be accompanied by sufficient information to enable the Seller to proceed without delay with the execution of the order. All orders require the Seller's acceptance in writing in order to create a contract. Any such acceptance will nevertheless be subject to the Buyer's credit being approved and to cancellation without liability at the instance of the Seller should the Seller subsequently determine that, in its opinion the Buyer's credit worthiness is inadequate.
All prices include only such Goods and accessories as are specified in the quotation and are for the quantities therein expressed. If the Buyer shall request any variation in quantity the price may be varied accordingly. a. Unless otherwise specified prices quoted do not include Value Added Tax which will be added at the rate prevailing at the appropriate tax point. b. Unless otherwise specified prices quoted do not include carriage which will be charged at extra cost. Where the quoted prices do include carriage the Seller shall determine the route and method of carriage and any special requirements of the Buyer shall be subject to an additional charge. c. Unless otherwise specified prices quoted include the Seller's and/or its suppliers' standard non-returnable packaging. It is the Buyer's responsibility to dispose of all packaging after delivery. d. At any time before delivery has been completed the Seller shall be entitled to vary the price of the Goods to take into account all or any of the following factors: I. where Goods are imported any variation of currency exchange rate or special taxes or charges imposed by any government; II. increased costs resulting from the prohibition or other actions of any government; III. increased transport costs (if carriage is included in the quoted price); IV. implementing any request by the Buyer for expedited despatch or changes in delivery, schedules, completion dates, quantities, designs or specifications. V. delays caused by instructions of the Buyer or by failure of the Buyer to give adequate instructions or information.
Payment shall be made strictly to the terms specified and in the currency stated on the invoice. In default of payment on the due date specified in the invoice the Company without prejudice to its rights hereunder may charge the Buyer interest on overdue accounts at the rate of 4% over the Bank of England interest rate for the time being, or at the maximum interest rate set by the applicable law (if any), whichever is lower. The Seller shall at its discretion (without prejudice to its right to treat the Contract as repudiated and claim damages) be entitled to withhold despatch of the Goods or any of them until all monies owing to the Seller by the Buyer have been paid in full.
6. Property And Risk
Until payment in full for all the Goods delivered (including any charges or interest due under Clauses 4 or 5 of these conditions) has been received by the Seller or until such time as the Buyer sells the Goods by way of a bona fide sale at full market value: ownership of the Goods shall remain with the Seller; I. the Seller reserves the right to dispose of the Goods, and the Seller shall be permitted to enter upon the Buyer's premises at all reasonable times to recover the Goods for this purpose; II. The Buyer shall store the Goods so that they may be readily identified as the property of the Seller and during such time the Buyer shall ensure that the Goods are kept and maintained in the condition in which they were delivered. a. The risk in the Goods shall, subject to Clause 8(b), pass to the Buyer on delivery to the Buyer or the Buyer's carrier.
The period quoted for delivery commences from the date of order acknowledgement but is an estimate only, and the time of delivery shall not be of the essence of the contract. Whilst the Seller shall use reasonable commercial endeavours to deliver the Goods by the date (if any) specified on the order acknowledgement it shall not be liable in any way for delay in delivery from any cause whatsoever and howsoever arising nor shall such delay entitle the Buyer to reject the Goods or treat the contract as repudiated or render the Seller liable for damages in any way. a. The Seller shall have the right to despatch any portion(s) of the Goods covered by the contract separately and to invoice the Buyer for such portion(s) so despatched on the same terms and conditions as are contained herein. b. It is the Buyer's duty to inform the Seller of the detailed delivery requirements in advance and to provide due warning and notice of any changes in such requirements. c. The Buyer shall take delivery of the Goods within [14 days] of the Seller giving it notice that the Goods are ready for delivery.
8. Non-Acceptance By Buyer
If by reason of the Buyer's default the Goods or any of them have not been taken up or delivered by any date specified for such taking up or delivery, then: the Buyer shall nevertheless pay the Seller in accordance with Clause 5 of these conditions as if such taking up or delivery had occurred; and I. the Buyer shall pay the Seller a storage charge in respect of any of the Goods which have not been taken up or delivered together with the cost of any additional handling and transport incurred. In the event that such storage by the Seller shall continue to a period exceeding six weeks the Seller may (without prejudice to any other rights which may have accrued) treat the contract as repudiated; a. During the period of any storage of the Goods or any of them by the Seller as contemplated by sub-clause 8(a)(ii) above such Goods shall be at the risk of the Buyer.
9. Loss Or Damage In Transit And Non-Delivery Of Goods
No responsibility will be accepted by the Seller for any shortage, non-delivery or damage occurring in transit unless the Buyer makes a claim in writing providing full particulars on both the carriers and the Seller within one week of receipt of Goods or, in the case of non-delivery, within four weeks after the expected arrival of the Goods.
10. Cancellation And Variation
No cancellation or variation of an order by the Buyer shall be effective unless served in writing at the Registered Office of the Seller and until accepted in writing by an authorised officer of the Seller. The Seller reserves the right to refuse to accept such cancellation or variation or to accept cancellation or variation only subject to such conditions as the Seller may determine. Acceptance by the Seller shall be subject to payment by the Buyer of such cancellation or variation charges as the Seller shall deem reasonable. Such charges shall take into account expenses incurred and commitments made by the Seller and all other losses due to such cancellation or variation.
11. Return Of The Goods
Where the Goods have been received by the Buyer and the Buyer wishes to return some or all of the Goods, the Seller can in its absolute discretion either: refuse to accept the return of such Goods and seek payment in accordance with Clause 5 hereof; or a. accept return of such Goods, subject to such conditions as the Seller may determine and subject to the Seller receiving immediate payment for those Goods not being returned.
12. Force Majeure
Should any event occur whether at the Seller's premises or elsewhere which is beyond the control of the Seller such as by way of example industrial action or dispute (including strike or lock out) shortage of materials, act of God, war, fire, flood, drought, breakdown of machinery, as a result of which the performance of this contract is prevented or delayed: Without prejudice to its right in the event of breach of contract by the Buyer the Seller reserves the right to cancel delivery or other performance of the Seller's obligations under any contract in whole or in part and in the event of the Seller exercising such right the Seller's liability shall be limited to the repayment to the Buyer (without interest) of any part of the purchase or contract price or charge already received by the Seller and attributed to any unfulfilled and cancelled part of the contract less any expenses incurred by the Seller down to the date of cancellation in part performance of the contract. a. If such prevention or delay continues for 60 days the Buyer may elect either to cancel the contract or to allow the order to remain on the books of the Seller and to be completed at some late date at an adjusted price to be determined by the Seller.
13. Replacement Of Defective Products
The Seller warrants that (subject to the other provisions of these conditions) upon delivery and for a period of six months from the date of delivery, the Goods shall be of satisfactory quality of within the meaning of the Sale of Goods Act 1979 and that Goods conform to his specification and, subject as below, indemnifies the Buyer against any loss suffered as a result of the Products failing to conform to such specification. a. Other than in respect of claims for death or personal injury caused by the negligence of the Seller, the Seller will not be liable for any of the following losses which may arise by reason of any breach of this Agreement or any implied warranty, condition or other term or any representation or any duty of any kind imposed on the Seller by operation of law: any loss of anticipated profits or expected future business; I. damage to reputation or goodwill; II. loss of any order or contract; III. any consequential loss of any kind. b. Other than in respect of claims for death or personal injury caused by the negligence of the Seller, if any liability attaches to the Seller under clause 13 (b) then the Seller's total liability in respect of any claim shall not exceed the total price payable under this Contract multiplied by a factor of 1.5. c. Sub-clause (a) of this Clause 13 shall be subject to the proviso that no guarantees provided by the Seller will apply: where the Goods have been installed, repaired or alterations made by anyone other than the Seller's representatives or authorised agent; or I. where the Goods have not been installed, commissioned, operated or used in accordance with procedures prescribed by the Seller.
14. Labelling, Packaging And Safety
The Seller will ensure that all products are labelled and packed in accordance with the applicable laws of England and the rules, regulations and directives that apply in that territory, including, but not limited to, those of the European Union and the United Nations Organisation. a. The Buyer undertakes to ensure that all product that is re-sold to any person is labelled and packed in the same manner and that any training or instructions necessary for the safe and effective use of the product is provided to any such person and indemnifies the Seller against all and any claims for loss, costs or damage arising from a failure by the Buyer to observe the requirements of this sub clause.
In the event of non-availability of materials or parts the Seller reserves the right to use suitable alternative materials or parts where possible. Such substitutes shall be accepted by the Buyer in full satisfaction and performance of the Contract or that part thereof for which it is a substitute as the case may be. In the event that the Seller is unable to obtain a satisfactory substitute its obligations to complete performance of the contract shall upon notification in writing to the Buyer be suspended until such time as the unavailable materials or parts or suitable substitutes become available.
The Seller shall be free to employ sub-contractors.
The Buyer shall indemnify the Seller against all claims, demands, damages, penalties, costs and expenses arising out of the Seller's performance of the Contract in accordance with the Buyer's specifications for which the Seller may become liable by reason of the infringement of any letters patent, registered design, trade mark, copyright (including design copyright) or any other industrial property right.
18. Intellectual Property
The Buyer hereby acknowledges that all intellectual property rights (including but not limited to copyright) in all documents (including drawings) supplied by the Seller to the Buyer shall remain with the Seller. In no circumstances whatsoever shall such documents or their contents be used for any purpose other than that for which they were supplied. The Buyer acknowledges that the trade marks, trade and brand names applied by the Seller to the Goods shall remain the property of the Seller and the Buyer shall acquire no rights in such names. Any intellectual property rights of the Seller shall be used only for the purposes of sale of the Goods.
No waiver by either party in respect of any breach by the other shall operate as a waiver in respect of any subsequent breach.
Any provisions of these conditions which in any way now or subsequently contravene the law shall be deemed severable and shall not affect any other provisions herein.
21. Governing Law
Any contract of which these conditions form part shall be governed by the laws of England and shall be subject to the exclusive jurisdiction of the English courts.
Any notices required to be served hereunder shall be deemed to be properly served if sent by prepaid Registered or Recorded delivery post to the last known address of the party to be served and shall be deemed to be duly served the day following the date of posting.
23. Clause Headings
The clause headings shall not affect the interpretation of these conditions.
Buyer may not assign its rights or obligations or delegate its duties hereunder, in whole or in part, without the prior written consent of the Seller. The Seller may assign in whole or in part its rights and obligations or delegate its duties (a) to a legal entity controlling, controlled by or under common control with the Seller or within Platform Specialty Production Corporation group of companies (b) to a third party if such assignment or delegation is in connection with the sale of the business of the Seller to which this agreement relates.