“Goods Conditions” means these Terms and Conditions for Sale of Goods.
“DMG” means Simplex-Turbulo Group Ltd trading as Diesel and Marine Group consisting of all companies within the Group including Simplex-Turbulo Company Ltd, Lincoln Diesels Ltd, Dorman Diesels, Temple Propulsion Services and STW Engineering GmbH.
“the Customer” means the party who has placed the Order with DMG.
“the Order” means the Customer’s instructions to DMG to supply the Goods.
“the Goods” means the goods and services or articles the subject of the Order.
“the Confirmation of Order” means the written confirmation by DMG of the Order.
“the Price” means the price for the Goods (exclusive of Value Added Tax) specified in the Confirmation of Order.
“the Contract” means the contract for the sale of goods made between DMG and the Customer incorporating the Goods Conditions.
2. Acceptance of Order
2.1 A Confirmation of Order shall be in writing.
2.2 An Order is accepted by DMG exclusively upon these Goods Conditions and no other conditions, terms, provisions or other representations whatever whether referred to in negotiations or set out in the Order or otherwise shall be incorporated into the Contract unless the Customer and DMG expressly so agree in written memorandum which shall refer to the Contract and be annexed to the Confirmation of Order.
The price(s) payable for the Goods shall be DMG’s prices ruling at the date of despatch so that DMG shall have the right at any time before delivery to revise quoted prices set out in the Confirmation of Order or otherwise.
4.1 Any delivery date specified in the Confirmation of Order or otherwise shall be deemed an estimate only, and DMG shall not be liable for failure to deliver in accordance with that date nor for any loss, damage or expense whatsoever however caused or arising out of any loss or delay in delivery.
4.2 The Customer shall not be entitled to refuse to accept the Goods because of late delivery.
4.3 Delivery shall be in accordance with the definitions given under INCOTERMS. Unless otherwise agreed between DMG and the Customer and specifically stated accordingly in the Confirmation of Order, contractual delivery shall be EXW, United Kingdom. Any subsequent handling of the goods following delivery EXW, such as loading of the goods, shipment of goods, insurance of goods or customs clearance of the goods which may arranged by DMG shall be effected either as agents for the Customer or under a separate contract of carriage or contract of insurance and shall not affect the delivery terms contained in the Contract of Sale.
4.4 Where delivery is made by instalments, each such instalment shall be deemed to be the subject of a separate Contract.
5.1 The mode of payment of the invoice, and a note of any advance payment received or required by DMG may be stated on the Confirmation of Order and unless so stated the invoice shall be paid in full by the Customer no later than thirty (30) days from the date of DMG’s invoice. The currency of payment shall be the currency of the Contract or (at the election of the Customer) some other currency, provided that it is freely convertible into the currency of the Contract and is to be converted at the rate prevailing of the London Foreign Exchange Market at the time when such payment is received by DMG, and it includes in full any bank or exchange charges levied against DMG as a result of such conversion.
5.2 Where any advance payment is required by DMG the Contract shall be conditional upon its receipt by DMG.
5.3 Time for payment as stipulated in the Confirmation of Order shall be the essence of the Contract. In the case of Goods sold or delivered by instalments, each instalment shall be paid for separately.
5.4 Where payment is to be made by bill(s) of exchange or cheque(s) payment shall be deemed not to have been made until the said bill(s) or cheque(s) are honoured by the Customer.
5.5 Where full payment has not been received by DMG on the due date DMG shall (without prejudice to its rights under the Contract or otherwise) be entitled to charge interest on the amount outstanding at a rate per annum equal to sixteen (16) per cent or three (3) per cent above HSBC Bank PLC’s Base Lending Rate for the time being in force (whichever is greater).
5.6 The Customer shall in no circumstances be entitled to make any deduction from the invoice payable by way of set-off or otherwise in respect of any claim or counterclaim which it may have against DMG.
6. Passing of Risk and Property in the Goods
6.1 The Goods shall from delivery be at risk of the Customer PROVIDED THAT where delivery is delayed at the request of the Customer for more than one month, DMG shall be entitled to place the Goods in store at the Customer’s risk and expense.
6.2 The property in the Goods shall not pass to the Customer whether or not the Customer has taken delivery of the Goods or any part thereof until the Customer shall have paid to DMG the whole of all sums due to DMG hereunder and the Customer shall not without prior written consent of DMG sell, assign, pledge, mortgage, charge, let, part with possession, or otherwise dispose of the Goods or any part thereof until the property in them has passed to the Customer.
6.3 The Customer shall so long as it is possible so to do make such arrangements for the storage and identification of the goods as to ensure that they are identifiable as the property of DMG.
7.1 All data containing specifications of weights, dimensions, quantities and the like which are contained in DMG’s catalogue or other literature are hereby declared to be approximate only as are also all weights and dimensions of shipments.
7.2 While DMG has taken care to ensure the accuracy of any information data or advice included in any catalogue or other literature furnished to the Customer, DMG accepts no liability in respect of such information, data or advice, whether given negligently or not, or for the use of Goods in any particular way suggested thereby, and the Customer shall at the time the Contract is made be deemed to have carried out its own investigations and tests of the Goods.
7.3 Notwithstanding the provisions of clause 17 DMG reserves the right upon giving notice of its intention to the Customer to make modifications to the Goods at any time before delivery provided that upon receiving such notice the Customer shall (if the said modifications are material) be entitled to elect to terminate the Contract.
7.4 Subject to the foregoing the Customer shall inspect the Goods immediately upon arrival at its premises and shall within three days of their arrival notify DMG of any damage, shortage, loss or other particulars by reason of which it alleges that the Goods supplied do not conform with the Contract. If no such notice is received the Goods shall be deemed to have been supplied in accordance with the Contract and to have been accepted by the Customer.
7.5 Where the Customer gives notice to DMG by virtue of sub-clause 7.4 it shall preserve the Goods intact and as delivered for a period of fourteen days after receipt by DMG of the notification, during which period DMG its agents or servants shall be at liberty to attend the Customer’s premises or Goods location and have unfettered access to the Goods, to investigate the complaint.
7.6 If the Customer fails to comply with either of sub-conditions 7.4 or 7.5 it shall be deemed to have waived all or any claim actions or rights or remedies it may have in respect of the non-conformity of the Goods to the Contract.
7.7 If upon inspection by DMG, the Goods are found to be damaged, short or otherwise not in conformity with the Contract, DMG shall at its absolute discretion at its own expense replace or otherwise make good the same.
7.8 Damage, shortage, loss or other non-conformity with the Contract which is present only in a proportion of the Goods or (where delivery is made by instalments) in only some of the instalments shall entitle the Customer to the remedies given by this Condition only in respect of that proportion or instalment.
7.9 Notwithstanding the provisions of this Clause, DMG shall have no liability to the Customer pursuant to sub-clause 7.7 to the extent that the said damage, storage or loss occurred after risk in the Goods passed to the Customer.
8. Seller’s Guarantee
8.1 In consideration of the Guarantee given by DMG as set out below the Customer expressly agrees that:
(i) The said Guarantee is given by DMG in lieu of and to the entire exclusion of every condition or warranty whether statutory or otherwise whatsoever, except to the extent that the statute prohibits such exclusion.
(ii) The liability of DMG howsoever arising is limited to exchange or repair (at DMG’s discretion) of any part or parts of Goods to extent of and no further than as set out in the said Guarantee.
(iii) DMG is released from any other form of liability including consequential loss or damage caused or arising by reason on the Goods not being of the type or quality ordered or by reason of the Goods being delayed or by reason of any other matter whatsoever.
For a period of six (6) months from the date on which the Goods are delivered to the Customer DMG will exchange or repair (at DMG’s discretion) any part or parts thereof requiring replacement or repair by reason of faulty design, workmanship or material, save that:
(a) DMG will not be responsible for any expenses which the Customer and/or user may incur in removing or having removed or replacing any part or parts of the Goods sent for inspection or fitting or having fitted any replacement or new parts supplied in lieu thereof.
(b) No claim for exchange or repair can be considered unless the defective part(s) are returned at sole cost of the Customer carriage paid to DMG’s works stating the parts are being returned under the guarantee together with the following information:
(i) The Seller’s reference on the Goods from which the part or parts were taken.
(ii) The defects claimed and the reasons for them.
(iii) The date of purchase and the source from which the Goods were purchased.
(c) This Guarantee does not extend to any defect which in the opinion of DMG (which opinion shall be final) was attribute to:
(i) Any form whatsoever of improper use.
(ii) Wear and tear.
(iii) Non-compliance with any instructions issued by DMG.
(iv) Incorrect fitment howsoever caused.
(v) Neglect of others.
(vi) Abnormal corrosive or abrasive conditions.
(vii) Any alteration or modification having been made to the Goods or any parts thereof or any connected parts without the express approval of DMG given in writing.
(d) For any part(s) returned under the guarantee, either to DMG’s works, or a place designated by DMG, title for the Goods shall pass to DMG on delivery. DMG then have thirty (30) days to inspect test or in any way analyse the part(s) to determine why the part(s) have been returned under the guarantee. In the event it is determined the part(s) are covered under the guarantee then repair, replacement or credit note, at DMG’s sole discretion, shall be effected. In the event it is determined that the part(s) are not covered by the guarantee, they will be held available for collection for seven (7) days and then disposed of as DMG see fit. The proceeds and/or costs of disposal will be for the Customer’s account.
9. Customer’s Undertakings
The Customer accepts full liability for and shall at all times indemnify DMG against all actions claims demands costs charges and expenses whatsoever arising out of any loss or damage due to any person firm company or property by reason of DMG having relied on any data, documents, drawings gauges, samples, models or the like supplied to DMG by or at the instigation of the Customer in connection with the performance of the Contract.
10. Health and Safety at Work etc. Act 1974
The Customer hereby undertakes to take all steps sufficient to ensure, so far as is reasonably practicable, that the Goods will be safe and without risks to health by properly using and handling them in accordance with the recommendations of DMG. Weights given are approximate and should be confirmed before lifting, manual or mechanical.
11. Termination of the Contract by DMG
11.1 DMG may terminate the Contract forthwith by written notice to the Customer upon the happening of any of the following events:
(i) Where full payment in respect of the Goods or any instalment of the Goods has not been received by DMG by the date specified as the date for payment.
(ii) Where the Customer has failed to provide any Commercial Credit, Bill of Exchange, or other security required by the Contract.
(iii) Where the Customer being an individual, commits any act of bankruptcy, or, being a corporation, goes into liquidation or has a receiver appointed of all or any of its assets by virtue of Section 518 of the Companies Act 1985 is deemed unable to pay its debts.
(iv) Where the Customer is in breach of any of these Goods Conditions.
11.2 The granting by DMG to the Customer of time or any other indulgence forbearance or concession shall in no way prejudice or constitute a waiver of DMG’s entitlement to enforce any of its rights under the Contract except and to the extent that it shall either constitute a variation of these Goods Conditions which has been made in accordance with clause 17.
11.3 If DMG terminates the Contract in accordance with this clause, then, without prejudice to any other rights DMG may have, it shall be entitled to retain any advance payment made by the Customer.
12. Cancellation by the Customer
The Contract may be cancelled by the Customer only with DMG’s written consent, which shall be given or withheld at the sole discretion of DMG and upon such terms as DMG may deem fit.
13. Force Majeure
In the event of:
riots, civil disturbance, strikes, lock-outs, industrial disputes, fire, floods, heat, frost, storm or other intemperate weather, Act of God, Act of Queen’s enemies or war (whether declared or not) or other hostilities carried on by any parties whatsoever, restraints or rulers of peoples including interferences by departments of governments in the United Kingdom or abroad, perils of the sea, breakdown in machinery, shortages of raw material or fuel or labour, shortages or breakdown of shipping or other means of transport, failure or delay by customary suppliers or sub-contractors of DMG (whether their involvement in DMG’s performance of the Contract is known to the Customer or not) to provide materials required in the production of the Goods or any other unforeseen or exceptional circumstances whatsoever affecting or hindering the performance of the Contract by DMG – DMG may in its discretion either:
(i) terminate the Contract and return any advance payment made in respect thereof of the Customer; or
(ii) delay delivery for such period or periods as it shall consider necessary (in which case the provisions of sub-clause 4.1 and 4.2 shall apply) and in either case the Customer shall have no claims whatsoever howsoever arising against DMG in respect of such termination or delay.
14.1 Any drawings or technical documents intended for use in the manufacture or construction of the Goods and submitted to the Customer prior or subsequent to the formation of the Contract remain DMG’s exclusive property. Such drawings or technical documents may not without DMG’s consent be utilised by the Customer or copied, reproduced, transmitted or communicated to a third party. The said drawings and documents shall become property of the Customer only if it is expressly so agreed in writing by DMG.
14.2 In the event that an Order or Contract is not proceeded with for any reason whatever, each party shall upon demand return to the other all such material as is referred to in the preceding sub-clause and undertake to destroy any copies thereof which may have been made by it.
15. Assignment and rights of third parties
The Contract is personal to the Customer, which shall not assign or charge the benefit thereof in any manner whatsoever without DMG’s express written consent. For the avoidance of doubt all third party rights which might otherwise have been created under the 1999 The Contracts (Right of Third Parties) Act are specifically excluded. The Contract does not confer any rights or benefits to any third party whatsoever.
The Contract shall in all respects be constructed and operate in accordance with English law, and the Customer hereby submits to the non-exclusive jurisdiction of the English courts.
Except as provided in clause 7.3 hereof after formation of the Contract any alterations amplifications modifications limitations or additions thereto must be agreed by the parties, made in writing, refer to the Contract, and be annexed to the Confirmation of Order.
18.1 Notices shall be made in writing and posted in a first-class pre-paid envelope to the Customer’s address as shown respectively on the Order and Confirmation of Order or failing those to the address at which one party reasonably believes the other to be carrying on business.
18.2 A notice shall be deemed to have been given forty-eight hours after posting (or ninety-six hours after posting where the notice is sent from and/or addressed to an address outside the United Kingdom)
The clause headings hereto shall not affect the construction of these Goods Conditions.