For the purposes of these Conditions:
1.1 The Buyer means any party to which the Seller has agreedto supply Products and/or Services, whether or not for value;
1.2 Contract means any contract (whether or not in writing) between the Seller and the Buyer for the supply to the Buyer of Products and/or Services, which shall be deemed to incorporate these Conditions;
1.3 Dealer means any Buyer who is purchasing any products for resale;
1.4 A Default when the Buyer either:
1.4.1 fails to make payment due to the Seller on or before the due date whether or not such payment isdue under the Contract; or
1.4.2 commits any breach of the terms of the Contract; or
1.4.3 enters into any agreement with any of its creditors: or
1.4.4 has a receiver, receiver and manager, administrator, administrative receiver or liquidator appointed over all or any part of its undertaking or assets; or
1.4.5 has a petition for an administration order or for a winding-up order brought against it; or
1.4.6 has proceedings equivalent to 1.4.4 or 1.4.5 ceasesto carry on its business or becomes unable to pay its debts; or
1.4.7 is in the reasonable opinion of the Seller unlikely to beable to fulfill all its obligations under the Contract;
1.5 Order means an order for Products and/or Servicesplaced by the Buyer;
1.6 The Seller means whichever of DMACK Limited or any ofits subsidiaries supply the Products and/or Services to theBuyer;
1.7 Price means the total amount payable by the Buyer forthe relevant Products and/or Services;
1.8 Products means any tyres or other products to be supplied by the Seller under the Contract, whether or notmanufactured by the Seller;
1.9 Intellectual Property Right means any patent, trade markor registered design, any application for any of the sameand any copyright or design right;
1.10 Services means any services to be supplied by the Sellerunder the Contract;
1.11 UK means the United Kingdom of Great Britain andNorthern Ireland;
1.12 VAT means value added tax (or replacement tax) at theappropriate rate;
2. THE CONTRACT
2.1 These Conditions shall apply to any Contract to the entireexclusion of any standard terms and conditions specified by
the Buyer. Acceptance of the Products and/or Services byor on behalf of the Buyer shall be deemed to be full andunconditional acceptance of these Conditions;
2.2 The Contract shall consist solely of the following documents, which shall take priority in the following order;
2.2.1 The Sellers acceptance or acknowledgement of theOrder (whether express or by performance of the Contract);
2.2.2 the Order but excluding any documents referred to in it and any standard Conditions of Purchase of the Buyer;
2.2.3 any documents referred to in the Order to the extent only that these have been expressly agreed in writing by the Seller;
2.2.4 any special terms and conditions agreed in writing between the Buyer and the Seller in respect of the Contract; and
2.2.5 these Conditions
2.3 Where the Seller accepts the Order by performing the Contract, these Conditions shall apply to the entire exclusion of any Conditions of Purchase of the Buyer except for any terms agreed in writing by the Seller.
3. AVAILABILITY AND CHANGES
3.1 If the Seller is unable to obtain any raw materials or components required for the Products or Services without incurring significant additional expense or delay, it may give written notice to that effect to the Buyer.Upon receipt of such notice by the Buyer the Contract shall cease to have effect except as regards any consignment of Products already manufactured by theSeller or any Services already performed by the Seller, which shall be paid for in full at the price stated in the Contract. Where relevant, the Price shall be apportioned in such manner as the Seller may reasonably determine in respect of such Products or Services.
3.2 The Seller shall have the right at any time prior to delivery or collection of the Products to change their specificationwhere, in the opinion of the Seller, such change constitutesan improvement to the Products, does not in any wayadversely affect the performance of the Products andconstitutes proper performance of the Contract. Any suchchange shall not affect the price for the Products.
4. QUOTATIONS AND ORDERS
4.1 Unless otherwise expressly stated on the quotation, a quotation shall only be valid until close of business on the same day of issue.
4.2 Any order shall be subject to acceptance by the Seller. All quantities and delivery terms shall be subject to the Sellerswritten agreement. Agreement as to quantities shall in anyevent be subject to the right of the Seller to reduce thequantities where it deems necessary to do so.
5.1 While the Seller will use all reasonable endeavors toadhere to any agreed delivery date, the time of delivery of the Products or performance of the Services shall not be of the essence. The Seller shall not be liable to the Buyer in damages or otherwise for any delay in delivery of the Products or performance of the Services.
5.2 If the Buyer alters any details of the Contract byagreement with the Seller (including but not limited to thedesign or quantity of the Products and Services) or if theBuyer raises any queries, the Seller may extend thedelivery date by such period as shall be reasonable in allthe circumstances.
5.3 Unless otherwise specified by the Seller when accepting an Order, prices are quoted on a FOB (Free on Board) basis. The Buyer shall inspect the Products on delivery for any visible damage or shortages and shall record any such damage or shortages on the deliverydocumentation. Claims in respect of Products whicharrive damaged or are short delivered must be notified tothe Seller in writing 5 working days after receipt togetherwith a copy of the delivery documentation.
5.4 Except where the Seller has agreed to store theProducts, if the Seller or its carrier is for any reason dueto the Buyer unable to deliver the Products (includingwithout limitation any suspension of performance of theContract by the Buyer) the Seller may give written noticeto the Buyer requiring the Buyer to take delivery of theProducts within 7 days. If the Buyer fails to do so the Seller shall be entitled:
5.4.1 to give written notice to the Buyer stating that all risk in the Products shall pass to Buyer; and/or
5.4.2 to invoice the Buyer for the full value of the Products; and/or
5.4.3 to require the Buyer take delivery of or to collect the Products within 7 days. Failure to do so shall be a breach of the Contract.
5.5 Where Condition 5.4 applies or where the Seller agreedto store any Products, the Seller shall be entitled to storethe Products at the Sellers works or elsewhere. TheBuyer shall pay all costs incurred by the Seller for storagewithin 30 days after submission of a supplementaryinvoice by the Seller. The Seller shall also be entitled tocharge for storage at the Sellers works at a commercialrate, which shall be paid for in the same way. The Sellershall be entitled to require the Buyer to insure theProducts against all normal risks and provide to the Selleradequate evidence of such insurance on request. If theBuyer fails to do so, the Seller shall be entitled to insurethe products and to charge the Buyer for such insurance.
5.6 If the Buyer requests the Seller to delay delivery by asignificant period and the Seller agrees to do so, theSeller shall have the right to increase the Price and shallnotify the Buyer of the new Price.
6.1 All claims in respect of products must be sent in writing to the Claims Department of the Seller at 42 Millbrook Road, Kingstown Industrial Estate, Carlisle, Cumbria, CA3 0EU, United Kingdom. The determination of the
Sellers technical staff as to whether or not Products are defective shall be conclusive.
6.2 Claims will only be considered by the Seller if:
6.2.1 adequate evidence of purchase is submitted with the Products;
6.2.2 notice in writing giving details of the alleged defects is given to the Seller as soon as possible;
6.2.3 where the products are manufactured by the Seller, the defects are due to faults manufacture or workmanship;
6.2.4 the Products have been used in accordance with all technical requirements or recommendations issued by the Seller and;
6.2.5 the Products are returned to the Seller at the Buyers expense, if so required by the Seller.
6.3 All implied terms, warranties and conditions are excluded from the Contract to the maximum extent permitted by law.
6.4 Where the Buyer is a consumer, the provisions of these Conditions are without prejudice to any rights that the Buyer my have under any applicable consumer protection legislation.
6.5 Where the Seller is reselling Products purchased from a third party, the Buyer shall be entitled to enforce any warranties given to the Seller by the third party to the extent permitted by law.
7. BRANDING, MARKETING REMOULDING ANDRETREADING
7.1 The Buyer shall not deface, brand, mark recut or in any way tamper with the Products, except that the
Buyer may re-groove truck tyres if this is done strictly inaccordance with the Sellers instructions.
7.2 The Buyer shall not sell or otherwise dispose if any Products under the name DMACK or any other name ormark associated with the Seller or any of its subsidiarieswhere such Products have been defaced, brandedmarked, recut, re-molded or retreaded by the Buyer or any third party and the Buyer shall indemnify the Selleragainst any claims arising from any subsequent use ofsuch Products.
7.3 The supply or Products and/or Services to the Buyer shallnot give the Buyer the rig
Click here to load reader