General Conditions of Sale
In these General Conditions of Sale the "Company" means DW Windsor Limited, the "goods" mean any item of whatsoever nature which is to be sold by the Company, the "Purchaser" means the person, firm or body corporate which buys or has agreed to buy the goods.
These General Conditions of sale shall apply to and form part of every contract or sale entered into by the Company. All orders are accepted and executed on the understanding that the Purchaser is bound by these General Conditions of Sale, and that these General Terms and Conditions take precedence in any priority sequence clause as may be issued by the Company from time to time.
No contract of sale shall come into being unless and until the Purchaser has accepted these General Conditions of either expressly or by implication. A person who is not involved in this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it. If any court with the correct authority finds any term of the Agreement, including any term relating to any exclusion of liability, to be invalid, illegal or unenforceable, this will not affect the other terms of this Agreement.
2. Limits of contract
The contract includes only such goods as are specified in the quotation or acknowledgement accompanying these General Conditions of Sale.
a. The price payable for goods shall, unless otherwise stated by the Company in writing, be the list prices of the Company current at the date of despatch and in the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Company current at the date of despatch of such instalment.
b. Unless otherwise expressly stated to be firm for a period, the Company's prices are subject to variation to take account of variations in wages, materials and other costs. The Company accordingly reserves the right to adjust the invoice price without notice by the amount of any increase or decrease in such costs after the price is quoted.
c. All prices are exclusive of Value Added Tax and this will be charged additionally at the applicable rate and recoverable as part of the amount due from the purchaser by the Company.
d. The prices quoted in the acknowledgement of order are generally in pounds sterling. In case of quotations and acknowledgements of orders in foreign currency, the prices shall be bound to the respective foreign currency only as long as the exchange rate of same in relation to the pound sterling has not changed by more than +/-2 % between the date of acknowledgement of order and the date of delivery. The Company reserves the right, in case of variations by more than +/-2 %, to fix a new price according to the change in the exchange rate for the deliveries outstanding at the moment of such change.
a. Unless otherwise agreed in writing, payment is due in full by the end of the month following the month of invoice. Proforma accounts must be paid in advance.
b. Where the Contract is to be or may be fulfilled in separate instalments, deliveries or part thereof, payment for each instalment, delivery or part there of shall be made as if the same constituted a separate contract.
c. Time for payment shall be of the essence of the contract.
d. Without prejudice to any other rights it may have, whether under the Late Payment of Commercial Debts (Interest) Act 1988 or otherwise, the Company is entitled to charge interest at 8% above the current base rate (LIBOR) on overdue payments of the price of the goods or the price of any instalment or partial delivery thereof.
e. Additionally, and without prejudice to its other rights, the Company shall be entitled to recover all direct expenses reasonably incurred by the Company in collecting or attempting to collect amounts of the price outstanding.
f. If the Purchaser fails to make any payment when due in accordance with these General Conditions of Sale, the Company reserves the right in its absolute discretion and without prejudice to any of its other rights or remedies to suspend all further deliveries until such payment has been made in full or, at the Company's option, to cancel the balance of the order. In either case the Company shall hold the Purchaser liable for costs incurred in respect of goods in course of manufacture or ready for despatch.
g. The Company shall be entitled to bring an action for the price or part thereof whether or not the property in the goods has passed.
h. If an order is cancelled, then the Purchaser will be liable for between 50% to 100% of the value of the order cancelled, plus any fees incurred in recovering the outstanding balance. The Company will endeavour to minimise the Purchasers loss subject to the timing, specification and completeness of the order. Any advanced payment is non-refundable in the event of cancellation.
Any contract shall be subject to the Company being satisfied as to the Purchaser's credit references, and without prejudice to the generality of the foregoing, the Company may (in its absolute discretion), having informed the Purchaser that the goods are ready for despatch, refrain from delivering the goods until such time as the Purchaser tenders the purchase money to the Company together with any outstanding amounts which may be due to the Company on any account whatsoever.
In all cases the prices are exclusive of carriage and insurance to the Purchaser's premises unless otherwise agreed in writing at the time of order.
All products which are despatched in special protective and reusable cartons such as crates, cases, pallets, stillages or skids, remain the property of the Company. This will be specified on the quotation and must be returned within one month in good condition carriage paid. A charge will be levied to recover the cost of crates, cases, pallets, stillages or skids when they are not returned, or they are returned damaged. No charge is made for any other form of packaging.
8. Loss or damage in transit
When the total price quoted includes delivery, the Company shall repair or replace free of charge goods damaged in transit or not delivered in accordance with the Advice Note provided that the Company is given written notification of such damage or non-delivery within such time (being not more than 7 days) as will enable the Company to comply with the carrier's conditions of carriage as affecting loss or damage in transit.
Notwithstanding the above undertaking, the Company will only consider claims for alleged shortage if they are received within two working days of the receipt of the goods by the Purchaser together with sufficient information to enable the Company properly to identify the shortage including the Advice Note number, case number and condition of case.
Any samples submitted with the Company's quotation or at the Purchaser's request must be returned within 60 days of receipt and the Company shall be entitled to charge for them if they are not so returned.
a. All times or dates for delivery of the goods are given in good faith but are approximate only and shall not be of the essence of the contract.
b. All times or dates for delivery shall be calculated from the date of acceptance by the Company of the order of the Purchaser, or from the date of receipt by the Company from the Purchaser of all information, instructions and drawings as shall be necessary to enable the Company to carry out the order, whichever shall be the later.
c. Unless otherwise stated in writing the Company shall be entitled to make partial deliveries of the goods.
d. The Company shall not be liable in any way whatsoever for the consequences whether direct or indirect of any delay in delivery or in the carrying out of any work of the contract.
a. The Company shall be under no obligation to alter or vary any part of the contract or any work connected therewith. Any alteration to or addition to or amendment or other variation of the specification, including any increase or decrease in the quality of the goods or any alteration to any drawings or to the quality, performance, weight or measurements of any goods or any alteration or variation of advised delivery schedules, shall, if requested by the Purchaser, be subject to the agreement of the Company, with such alteration or addition to the price and to delivery dates or schedules as may be required by the Company, and shall not be binding upon the Company unless and until accepted by the Company in writing.
b. In the event of any variation or suspension of the work by the Purchaser's instructions or lack of instructions the Company shall be entitled to adjust the contract price to reflect costs involved, and to adjust delivery dates or schedules.
If the Company does not receive forwarding instructions sufficient to enable it to despatch the goods within fourteen days after notification that the goods are ready for delivery or that they have been tested under Clause 14, the Purchaser shall thereupon take delivery or arrange for storage.
If the Purchaser does not take delivery or arrange for storage as aforesaid, the Company shall be entitled to invoice and be paid for the goods as though the goods had been duly delivered in accordance with these General Conditions of Sale and the Company may arrange storage either at the Company’s own works or elsewhere on the Purchaser's behalf and all charges for storage, insurance or demurrage shall be payable by the Purchaser.
Any performance figures given by the Company are based on its experience and are such as the Company expects to obtain under the conditions of its standard tests at its work.
14. Inspection and tests
The Company's products are carefully inspected, and, where practicable submitted to its standard tests at the Company's works before despatch. If tests other than those specified above are required or the presence of the Purchaser or its representatives are required, the Company must be informed either on order. Any additional testing will be charged for.
The Company requires 30 days minimum notice of the purchaser attending test. In the event of any delay on the Purchaser's part in attending tests after the Purchaser has received 7 days notice that the Company is ready to perform the tests, the tests will proceed in the Purchaser's absence and the Purchaser accordingly agrees herein to accept and pay for such tests as if they had been performed in the Purchaser's presence.
15. Descriptive matter and illustrations
All descriptions, illustrations and particulars of weights and dimensions issued by the Company in catalogues, price lists, advertising matter and forwarding specifications are by way of general descriptions and approximate only and shall not form part of any contract or give rise to any liability on the part of the Company. It is the policy of the Company to endeavour to develop and improve its products, and accordingly the Company reserves the right to change all specifications without prior notification or public announcement pursuant to such policy. Provided that nothing in this Clause shall oblige the Purchaser to accept goods which do not substantially comply with the contract.
a. The Company will make good by repair or at the Company's option by the supply of a replacement defects which, under proper storage and use appear in the goods within the period of twelve calendar months after the goods have been delivered and arise solely from faulty design (other than design made or furnished by the Purchaser), materials or workmanship.
b. The Warranty given in this Clause is subject to the following provisions:
i. that the Purchaser shall have followed all instructions issued by the Company in relation to the goods.
ii. that in the case of defects which would have been reasonably apparent to the Purchaser on reasonable examination of the goods on delivery, the Purchaser shall notify the Company of the defects in writing within fourteen working days of delivery.
iii. that in the case of any other defects, the Purchaser shall notify the Company of the defects in writing within seven days of the date when the defect becomes apparent.
iv. that where in discharge of its obligations under the Warranty given in this Clause the Company agrees that the Purchaser may undertake any repair or remedial work on its behalf, the cost of such work shall be agreed in writing between the Purchaser and the Company before the commencement of any such repair or remedial work.
Unless otherwise agreed in writing and subject to Clause 16 hereof (Warranty), goods rejected as not complying with the contract must be rejected within fourteen working days of delivery to the Purchaser's premises or such other place as the Purchaser shall have specified.
18. Return of goods
In no circumstances may goods supplied against a firm order be returned without the Purchaser having first applied for and obtained the written consent of the Company. A handling charge may be deducted from any credit allowed by the Company where it is established that the reason for the return of goods was not the subject of Clause 8 (Loss or damage in transit) hereof or due to any error on the part of the Company.
19. Consequential loss
Save as may be expressly provided for herein the Company shall not be liable for any consequential loss suffered by the Purchaser, and in particular the Company shall not be liable for any costs claims or damages or expenses arising out of any tortuous act or omission or any breach of contract or statutory duty calculated by reference to profits income production or accruals or by reference to accrual of such costs claims damages or expenses on a time basis. Unless otherwise agreed in writing the purchaser indemnifies the Company from any and all financial penalties associated with any main or sub-contract terms and conditions which may apply to the Purchaser. This includes, but not limited to, any and all Performance Standard, KPI, Liquidated and Ascertained Damages, or any other punitive financial adjustment which may be applicable from time to time to the Purchaser.
The Purchaser will indemnify the Company against all damage penalties costs losses and expenses suffered by the Company or for which it may become liable in respect of the infringement of any intellectual property including (but without limitation) any patent copyright registered design trademark name or know-how arising out of the Company's manufacture of goods in accordance with any specification design drawings or other data supplied by the Purchaser or its servants or agents.
All drawing descriptions and other information submitted by the Company shall remain the property of the Company together with the copyright therein.
22. Force majeure and circumstances
The Company shall be entitled without liability on its part and without prejudice to its other rights, to terminate the contract or any unfulfilled part thereof, or at its option to suspend or make partial deliveries or extend the time or times for delivery, if the manufacture of the goods by the Company or Company's suppliers, or the delivery of the goods or the performance by the Company of any of its obligations under the contract is hindered or delayed whether directly or indirectly by reason of the Purchaser failing to furnish necessary instructions or information, or by war or other hostilities, civil commotion, act of God, government action or legislation, interruption of transport, strike, lock out or other form of industrial action, accidents or stoppages to works, shortage of labour, materials, equipment, fuel or power, breakdown of machinery or any other cause whatsoever beyond the reasonable control of the Company or its sub-contractors whether or not such cause exists at the date of the order.
23. Passing of property and risk
a. The risk in the goods shall pass to the Purchaser immediately on delivery of the goods to the Purchaser.
b. The property in the goods shall remain with the Company, which reserves the right to dispose of the goods until payment in full for all the goods has been received by the Company in accordance with the terms of this contract or until such time as the Purchaser sells the goods to its customers by way of bona fide sale at full market value in the ordinary course of business. While the goods remain the property of the Company the Purchaser shall keep the goods identifiable and separate from all other goods in its possession.
c. Until such payment as aforesaid has been received in full by the Company the Purchaser shall be under an obligation to redeliver the goods to the Company if the Company so requires and the Company shall be entitled at any time to retake possession of the goods and for that purpose to enter upon any land or premises of the Purchaser where the goods may be for the time being. The Company shall be entitled, where the goods have been fixed or attached to any other product, to detach the goods in order to recover possession of them. Such re-delivery or retaking of possession shall be without prejudice to the obligation of the Purchaser to purchase the goods.
d. If the Purchaser sells any of the goods before the property in the goods has passed to the Purchaser, the Purchaser shall hold the proceeds of such sale in trust for the Company. The Purchaser shall, at the request of the Company, assign to the Company its rights to receive the proceeds of such sale.
24. Bankruptcy / Distress of Purchaser
In the event of the Purchaser committing any breach of this contract, or if any distress or execution is levied upon the Purchaser, his goods or assets, or if the Purchaser enters into any negotiations for arrangement or composition with or for the benefit of his creditors or commits any act of bankruptcy or, if any petition in bankruptcy shall be presented against him, or if, being a corporate body the Purchaser shall be wound up or if any resolution is proposed or petition presented to wind up the Purchaser (not being a members voluntary winding up for the purpose of reconstruction or amalgamation without insolvency).
Or if a receiver of the Purchaser's assets or undertaking or any part thereof shall be appointed or if the Purchaser shall be deemed to be unable to pay its debts, the Company shall be entitled, without prejudice to any other claim or right or remedy which it may have. Forthwith to suspend any or all deliveries until the default has been made good or to determine the contract or any unfulfilled part thereof.
Software, as a set of software programmes, pertaining documents, and all subsequent additions including, but not limited to, any images, applets, and text incorporated into the Software are trade secrets or confidential information of the company. The purchaser shall have a non-exclusive and non-transferrable software license of use with the products for which such software programmes have been delivered, so long as you comply with all the terms of this agreement and are permitted to under the contract quoted. Software is licensed to Purchaser on a specific number of units and/or for a specific number of users, both depending on order.
The Company reserve all rights (such as rights under intellectual property laws) not expressly granted in this agreement. For example, this license does not give you any right to, and you may not:
i. use the software separately from the products
ii. publish, copy rent, lease, or lend the software
iii. transfer the software (except as permitted by this agreement)
iv. work around any technical restrictions or limitations in the software
v. reverse engineer, decompile, or disassemble the software
28. Disclosure of Personal Information & Data Protection
a. DW Windsor comply with all applicable data protection laws in the UK. For payments made by credit card, in order to confirm the transaction, the customer must accept the transfer and the storage of its financial data, name, address and any other information necessary to the secure payment company Ingenico.
b. The collection of your personal data is a mandatory requirement for this purpose. Without this data, your transaction could be delayed or rendered impossible and your order cancelled.
c. This data is intended for the authorised departments of the DW Windsor Group involved in payment processing,
d. The Company complies with all applicable data protection laws in the UK.
29. Limitation of Liability
Notwithstanding any claim for death, injury or fraud due to negligence, the Company does not accept responsibility for any financial loss or damage, such as losing profit, income, business, contracts or goodwill; or any loss which the Company or the Purchaser would not have reasonably expected when we made this contract. The maximum liability the Company can pay the purchaser will be limited to the value of the contract or limited to no more than £1 million in total for each event or £1 million in aggregate for connected events.
If at any time, any question, dispute or difference whatsoever shall arise between the Purchaser and the Company upon or in relation to or in connection with the contract, either party may give the other notice in writing of the existence of such question, dispute or difference and the same shall be referred to the arbitration of a person to be mutually agreed, or failing agreement within 30 days of receipt of such notice of some person appointed by the President for the time being of the Institute of Electrical Engineers in Great Britain. A submission to arbitration under this Clause shall be deemed to be a submission to a sole arbitrator pursuant to the Arbitration Act 1996 or any statutory modification or re-enactment thereof. Any such arbitration shall be held in a UK court of England and Wales.
All contracts to which these General Conditions of Sale apply shall be governed by and construed in accordance with English Law.
Please contact us if you have any concerns with regards to these General Conditions of Sale.