In these Terms of Business (“the Terms”) the following words shall have the following meanings:
means these Terms, an Order Acknowledgement and the relative Order and if there shall be any inconsistency between the documents comprising an Agreement, they shall have precedence in the order listed above
means the organisation or person with whom an Agreement is made by DTS
the deliverables set out in the Order supplied by DTS as part of the Services under the Agreement
means the articles or things or any of them described in an Agreement together with any Deliverables and including, without limitation, raw materials, processed materials or fabricated products
is DTS’s acknowledgement of an Order for Goods and/or Services confirming acceptance of that Order
shall mean an order for the purchase of Goods and/or supply of Services submitted to DTS by the Buyer
Dunchurch Technical Services Limited (Reg. No. 9723865) of 353 Dunchurch Road Rugby Warwickshire CV22 6HT
means the services (if any) including any Deliverables to be provided by DTS as described in the Order.
1.1. The Terms shall apply to all contracts for the sale of Goods and/or Services supplied by DTS to the Buyer to the exclusion of all other Terms referred to, offered or relied on by the Buyer, whether in the negotiation or at any stage in the dealings between the Parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been agreed by DTS in writing.
1.2. Any variation to the Terms (including any special Terms agreed between the Parties) shall not apply unless agreed in writing by and signed by a director on behalf of DTS.
2.1. Unless verbal or telephone Orders and any variations to Orders are confirmed in writing by the Buyer DTS shall not be responsible for errors or subsequent misunderstandings.
2.2. Notwithstanding that DTS may have given a detailed quotation no Order shall be binding on DTS unless and until it has been accepted in writing by DTS by means of an Order Acknowledgement.
2.3. Any quotation given by DTS is valid for  days from the date on the quotation only.
3. PRICE AND PAYMENT
3.1. The price of the Goods and/or Services will be the price stated in the Order Acknowledgement, being, unless otherwise stated by DTS, the list price or hourly rates of DTS current at the date of the Order Acknowledgement. DTS’s prices are subject to adjustment to take account of any variation in DTS’s costs including (but not limited to) variations in the nature and extent of the services required following inspection of any equipment by DTS, wages, the cost of materials, exchange rate fluctuations, alterations of duties and other costs since the date of DTS’s quotation or (if no quotation is issued) the Order. DTS accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted or the Order is submitted (as applicable). The invoice
so adjusted shall be payable as if the price set out therein were the original Agreement price.
3.2. The price is exclusive of VAT, which will be charged at the appropriate rate. The price is also exclusive of transport, packaging, insurance and any other applicable duties or taxes, unless otherwise explicitly agreed.
3.3. All invoices of DTS shall unless otherwise agreed in writing by DTS be paid by the Buyer within  days of the date of DTS’s invoice without deduction or withholding and free of set off or counterclaim. Time for payment shall be of the essence of an Agreement. DTS shall be entitled to render an invoice for the Goods sold under an Agreement as soon as DTS has provided an Order Acknowledgement.
3.4. DTS shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date of payment at the rate of 4% per annum above the base rate of Lloyds TSB. DTS may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
3.5. If the payment of the price or any part thereof is not made by the due date, DTS shall be entitled to:
3.5.1. require payment in advance of delivery in relation to any Goods and/or Services not previously delivered;
3.5.2. refuse to make delivery of any undelivered Goods and/or Services whether ordered under the Agreement or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
3.5.3. suspend all Services until payment has been made in full; or
3.5.4. terminate the Agreement.
3.6. In the event of termination of the contract (for whatever reason) the Buyer shall pay DTS for all Goods already supplied and DTS shall be entitled to invoice the Customer for all Services and costs and expenses already provided or incurred by DTS at the date of termination.
4. SPECIFICATION OF GOODS AND/OR SERVICES
4.1. No description, specification or illustration contained in any product pamphlet or other sales or marketing literature of DTS and no representation written or oral, correspondence or statement shall form part of any Agreement.
4.2. Goods and/or Services described in DTS’s literature or elsewhere are subject to a continuing process of technical change and development and DTS therefore reserves the right to alter specifications without notice at any time before delivery.
4.3. All descriptions, illustrations, specifications and dimensions are approximate and are only intended to present a general guideline as to the type of Goods and/or Services represented thereby. It is therefore agreed by the Buyer that Goods and/or Services supplied may not comply in all respects with the description in DTS’s literature or elsewhere.
5. SUPPLY OF GOODS AND SERVICES
5.1. DTS shall supply the Goods and/or Services to the Buyer in accordance with the [Order Acknowledgement] in all material respects.
5.2. DTS shall have the right to make any changes to the Goods and/or Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Goods and/or Services, and DTS shall notify the Buyer in any such event.
5.3. If DTS’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):
5.3.1. DTS shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays DTS’s performance of any of its obligations;
5.3.2. DTS shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from DTS’s failure or delay to perform any of its obligations as set out in this clause 5.3; and
5.3.3. the Buyer shall reimburse DTS on written demand for any costs or losses sustained or incurred by DTS arising directly or indirectly from the Buyer Default.
5.4. The date of delivery specified by DTS is an estimate only given in good faith. DTS undertakes to use reasonable endeavours to despatch the Goods and/or perform the Services on the agreed date(s), but does not guarantee to do so. Time of delivery of the Goods or the performance of any Services shall not be the essence of the Agreement, unless expressly agreed in writing by DTS.
5.5. All risk in the Goods shall pass to the Buyer on delivery, such that the Buyer shall be liable for any subsequent loss or damage to Goods however caused. Goods are delivered by carriers over whom DTS has no control and therefore DTS shall not be liable for any loss, damage or expense suffered by the Buyer or any other party by reason of any alleged delay in delivery.
5.6. Goods collected by the Buyer from DTS’s premises shall be deemed to be delivered and risk shall pass to the Buyer when they have been loaded on to the Buyer’s vehicle or are otherwise in the Buyer’s possession.
5.7. Goods transported by DTS shall be deemed to be delivered when they are ready to be unloaded at the site specified by the Buyer.
5.8. When delivery is refused by the Buyer or is delayed, suspended or made by instalments at the request of the Buyer, risk in the Goods (or any of them not delivered in these circumstances) shall pass to the Buyer immediately upon such refusal or request by the Buyer and (without prejudice to the generality of the foregoing) DTS shall place such Goods into store and the cost of storage and insurance of such Goods and of any attempted delivery of such Goods shall be for the Buyer’s account.
5.9. No liability for non-delivery loss of or damage to the Goods occurring prior to delivery or for any claim that the Goods and/or Services are not in accordance with the Agreement will attach to DTS unless claims to that effect are notified in writing by the Buyer to DTS:
5.9.1. within 7 days of delivery for loss damage or non-compliance with the Agreement; or
5.9.2. for non-delivery within 10 days of the delivery date specified by DTS.
If the Buyer fails to give such notice the Goods and/or Services shall be deemed to be in all respects in accordance with the Agreement and, without prejudice to earlier acceptance by the Buyer, the Buyer shall be bound to accept and pay for the same accordingly.
5.10. The Buyer agrees that Section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by DTS.
5.11. In the event of a valid claim for non-delivery loss damage or non-compliance with the Agreement DTS undertakes at its option either to repair, replace or re-perform the Goods and/or Services at its expense but shall not be under any further or other liability to any person in connection with such non-delivery loss damage or non-compliance.
5.12. If forwarding instructions are not received within 5 days, or 14 days for export orders, of DTS’s advice to the Buyer that Goods are ready for despatch, DTS shall be entitled to make an appropriate storage charge from the date of such advice.
6.1. In spite of delivery having been made, property in the Goods and any Deliverables shall not pass from DTS until the Buyer has paid the price of all the Goods and/or Services under the Agreement and no other sums are due from the Buyer to DTS.
6.2. Until the property in the Goods and any Deliverables passes to the Buyer, the Buyer shall:
6.2.1. hold the Goods and any Deliverables and each of them on a fiduciary basis as a custodier/bailee for DTS;
6.2.2. store the Goods and any Deliverables separately from all other goods in its possession and marked in such a way that they are clearly identified as the property of DTS;
6.2.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods and any Deliverables;
6.2.4. maintain the Goods in satisfactory condition and keep them insured on DTS’s behalf for their full price against all risks to the reasonable satisfaction of DTS. On request the Buyer shall produce the policy of insurance to DTS.
6.3. Notwithstanding that, the Goods and any Deliverables remain the property of DTS, the Buyer may sell the Goods in the ordinary course of the Buyer’s business at full market value for the account of DTS. Until property in the Goods passes from DTS, the entire proceeds of sale or otherwise of the Goods shall be held on trust for DTS.
6.4. Until such time as property in the Goods passes from DTS to the Buyer, the Buyer shall, upon request, deliver up such Goods and any Deliverables as have not ceased to be in existence or resold, to DTS. If the Buyer fails to do so, DTS may enter upon any premises owned or occupied or controlled by the Buyer where the Goods are situated and repossess the Goods.
6.5. DTS shall have the right to maintain an action for the price of the Goods and any Deliverables notwithstanding that title may not have passed to the Buyer.
7. BUYER’S OBLIGATIONS
7.1. The Buyer shall provide DTS with any information reasonably required by DTS as well as obtain all necessary permissions and consents including (without prejudice to the generality of the foregoing) providing suitable safe access (including suitable insurance cover) for DTS’s employees and agents while on the Buyer’s site/premises in order to provide the Services and/or promptly obtaining all necessary licences and other consents necessary for the purchase of the Goods and/or provision of the Services.
7.2. Without prejudice to any other rights to which DTS may be entitled, in the event that the Buyer unlawfully terminates or cancels the Agreement, the Buyer shall be required to pay to DTS, as agreed damages and not as a penalty, the full amount of any third party costs to which DTS has committed and in respect of cancellations on less than 10 days’ written notice the full price of the Goods and/or Services as set out in the Agreement, and the Buyer agrees this is a genuine pre-estimate of DTS’s losses in such a case.
8. ALTERATIONS TO THE AGREEMENT
8.1. The Parties may, at any time, mutually agree upon variations to the Agreement. Any alterations in the scope of Goods and/or Services to be provided under the Agreement shall be set out in a revised Order Acknowledgement, which shall reflect the changed Goods and/or Services and price and all other terms agreed between the Parties.
8.2. The Buyer may at any time within 14 days of the Order Acknowledgement request in writing alterations to the Agreement. On receipt of the request for alterations, DTS shall, within 7 days, or such other period as may be agreed between the Parties, advise the Buyer by notice in writing whether it is prepared to alter the Agreement in accordance with the Buyer’s request and, if it is, the basis upon which it is prepared to do so having regard to the changes which DTS would require to the price and any other terms previously agreed between the Parties (“an alteration notice”).
8.3. The Buyer shall, within 7 days of receipt of an alteration notice, or such other period as may be agreed between the Parties, advise DTS by notice in writing whether or not it wishes the Agreement to be altered on the basis set out in the alteration notice. If such a notice is given by the Buyer, the terms of the altered Agreement shall be set out in a revised Order Acknowledgement.
9.1. The Agreement shall not constitute a sale by description or sample
9.2. DTS warrants that it has the right to sell the Goods, but otherwise the Goods are provided on an “as-is” basis without warranty of any kind, express or implied, oral or written including, without limitation, any implied term as to quality, fitness for purpose or description, all of which are specifically and unreservedly excluded. In particular, but without limitation, no warranty is given that the Goods are suitable for any specific purpose intended by the Buyer.
9.3. Subject to clause 9.4 and 9.;5 below, where the Goods are found under proper use to be defective, DTS shall repair, or in its sole discretion, replace such defective Goods free of charge within 90 days from the the later of the date of delivery or date of fitting/commissioning (where DTS has provided a fitting Service for those Goods), subject to the following conditions:
9.3.1. the Buyer notifying DTS in writing immediately upon the defect becoming apparent;
9.3.2. the defect being solely due to faulty design, materials or workmanship.
Any Goods to be so repaired or replaced shall be returned to DTS at the Buyer’s expense.
9.4. DTS shall not be liable under clause 9.3 in so far as the defect arises as a result of:
9.4.1. the Buyer’s failure to follow DTS’s oral or written instructions on the storage, commissioning, use and maintenance of the Goods or (if there are none) good industry practice regarding the same;
9.4.2. DTS following any instructions or specification for the Goods supplied by the Buyer;
9.4.3. the Buyer’s alteration or repair of the Goods without the written consent of DTS; or
9.4.4. wilful damage, negligence or abnormal commissioning or use of the Goods.
9.5. Where the Goods have been manufactured and supplied to DTS by a third party, any warranty granted to DTS shall be passed on to the Buyer to the extent that DTS is able and subject to the Goods having been accepted and paid for by the Buyer.
9.6. DTS shall be entitled in its absolute discretion to refund the price of defective Goods in the event that such price has already been paid.
9.7. DTS warrants to the Buyer that the Services will be provided using reasonable care and skill and free from defects in workmanship for a period of 90 days from date of the performance of the Services and if such Services are found to be defective DTS shall re-perform the Services, or in its sole discretion, refund the price for such Services (if it has already been paid) subject to the following conditions:
9.7.1. the Buyer notifying DTS in writing immediately upon the defective Service becoming apparent; and
9.7.2. the defect being solely due to faulty workmanship of DTS
The Buyer shall indemnify DTS against all claims, costs and expenses which DTS may incur and which arise, directly or indirectly, from the Buyer’s breach of any of its obligations under the Agreement.
11. LIMITATION OF LIABILITY
11.1. The following provisions set out the entire financial liability of DTS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
11.1.1. any breach of the Agreement;
11.1.2. any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods;
11.1.3. the Services; and
11.1.4. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement
11.2. Save as expressly provided in the Agreement, all conditions, warranties and other terms implied by statute or common law are to the fullest extent permitted by law excluded from the Agreement.
11.3. DTS’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the Agreement price.
11.4. In no event shall DTS be liable to the Buyer for any loss of business, loss of opportunity, loss of profits, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of contract, loss of use, loss or corruption of data or information or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses whatsoever (howsoever caused) which arise out of or in connection with the Agreement. This shall apply even where such a loss was reasonably foreseeable or DTS had been made aware of the possibility of the Buyer incurring such a loss.
11.5. Nothing in the Agreement shall exclude or limit DTS’s liability for death or personal injury resulting from DTS’s negligence or that of its employees, agents or subcontractors.
12.1. DTS may, by written notice, terminate the Agreement immediately if the Buyer is in breach of any of the terms of the
Agreement, which, if capable of remedy, is not remedied within 7 days of a notice served by DTS requiring such breach to be remedied. Failure to pay any sums due is a breach of the terms of the Agreement which is not capable of remedy.
12.2. The Agreement shall be terminated if an order is made for bankruptcy of the Buyer or an effective resolution is passed for the winding-up of the Buyer or the Buyer makes a composition with creditors or if a supervisor, receiver, administrator, administrative receiver or other encumbrancer takes possession of or is appointed over the whole or any part of the assets of the Buyer.
12.3. The Agreement shall be terminated if either party ceases to carry on its business or substantially the whole of its business or where either party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or where either party is declared insolvent.
12.4. Termination of the Agreement shall not affect any rights or obligations of the Parties arising prior to such termination.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 13 shall survive termination of the Agreement.
14. FORCE MAJEURE
DTS shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and DTS shall be entitled in these circumstances to delay or cancel delivery or to reduce the amount delivered.
15.1. The Buyer shall not be entitled to assign an Agreement or any part of it without the prior written consent of DTS.
15.2. DTS may assign or sub-contract an Agreement or any part of it to any person, firm or company.
The failure by either party to enforce, at any time or for any period, any one or more of the Terms of the Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all Terms of the Agreement.
If any term or provision of the Terms is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Terms had been agreed with the invalid, illegal or unenforceable provision eliminated.
18. RIGHTS OF THIRD PARTIES
The Parties do not intend any part of the Agreement to be enforceable by any person not a party to it, by virtue of the Contracts (Rights of Third Parties) Act 1999.
19. GOVERNING LAW
The Agreement shall be governed by and construed in accordance with the law of England and Wales and the Courts of England and Wales shall have non-exclusive jurisdiction to hear all disputes arising in connection with the Agreement.
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