1 Definitions

Unless otherwise expressly agreed in writing by a Director of the Seller all Goods are sold subject to the following conditions to the exclusion of any conditions of the Customer:

(a) ‘Contract’ means any agreement entered into by the Seller with the Customer which in each case shall be on these terms and conditions to the exclusion of any terms and conditions of the Customer.

(b) ‘Customer’ means the person, firm, company or other trading organisation to which Goods are supplied.

(c) ‘Date of Installation’ is the date the Seller first advises they are ready to despatch the Goods, migrate your data or install the Software, whichever is the earlier.

(d) ‘Intellectual Property Rights’ means copyright, database rights, trade marks, patents, service marks, design rights, know-how, trade or business names, domain names, goodwill associated with any of the foregoing and other similar rights or obligations whether registrable or not in any jurisdiction in the world.

(e) ‘Order Form’ means the Customer Order Form.

(f) ‘Goods’ means the goods and/or services listed in the Customer Order Form and any other article supplied by the Seller to the Customer and where applicable includes any work relating to the installation, commissioning, training and support thereof.

(g) ‘Price’ means the price for the Goods.

(h) ‘Seller’ means du Pré Marine Ltd.

(i) ‘Software’ means the Seller’s program together with all Modifications and Bespoke Code as such terms are defined in the Seller’s Software Licence Terms and Conditions.

(j) ‘Customer Network’ means the Customer’s own hardware, network, infrastructure, or any third party software.

(k) ‘VAT’ shall mean any applicable sales tax and other government tax.

(l) ‘SLA’ shall mean the Seller’s Service Level Agreement for the provision of support services for the Software.

2 Quotations

(a) No quotation or other offer from the Seller shall be valid unless it is in writing and signed on behalf of the Seller by a duly authorised person.

(b) No clerical error or omission shall annul the Contract but may be corrected by the Seller.

(c) It is the sole responsibility of the Customer to check all quantities with specification requirements.

(d) When a Contract refers to financing of Goods the Seller shall not be responsible for providing such finance and the Customer’s failure to obtain the same from a third party will not be a breach of the Contract by the Seller nor be the grounds for cancellation by the Customer and the Seller reserves the right to withdraw, cancel or vary any quotation given (whether before or after acceptance) including reissuing the quotation on the basis of a purchase of the Goods by the Customer from the Seller.

(f) Any quotation may be withdrawn, cancelled or varied by the Seller at any time prior to acceptance and shall lapse if not accepted within 30 days of the date stated on the quotation.

(g) These Terms and Conditions constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Contract to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply under any purchase order confirmation of order or similar document.

(h) All orders for Goods shall be deemed to be an offer by the Customer to purchase Goods pursuant to these Terms and Conditions.

(i) Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Customer’s acceptance of these Terms and Conditions.

(j) Where the Goods to be supplied pursuant to the Contract include Software the Seller’s Software Licence Terms and Conditions and where the Seller has contracted to supply support services the SLA shall respectively apply to the supply and support of the Software on the basis that if there is any conflict between the Software Licence Terms and Conditions and the SLA and these Terms and Conditions the relevant provision of the Software Licence Terms and Conditions and SLA shall apply in respect of the Software. Where part of such support services are provided by another provider such as Amazon, that company’s terms and conditions (including any associated service level agreement) takes precedence over

(i) these Terms and Conditions
(ii) the SLA and
(iii) the Seller’s Software Licence Terms and shall apply in respect of that part of the support services.

(k) Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by a Director of the Seller. (l) Where during or after the supply of the Goods the Seller creates for the Customer reports or any other works in which Intellectual Property Rights exist the ownership and title to such Intellectual Property Rights shall remain with the Seller which shall be entitled to use the same for itself and its clients.

3 Third Party Goods

(a) Unless the Contract provides to the contrary orders for the supply of third party Goods shall be accepted by the Seller only if received in writing from the Customer and must be accompanied by payment in full for such Goods, including VAT where applicable. The Seller will not arrange to purchase third party Goods until an order for such Goods together with payment is received in such manner.

(b) Any Third Party warranties passed on with the Goods are understood as expressed in those suppliers’ and manufacturers’ terms of warranty. The Seller issues no warranties in its own name in respect of any third party Goods supplied.

(c) Without prejudice thereto the Customer shall insure all Goods from delivery against loss or damage and shall maintain the same in good saleable condition. At all times before payment in full the Goods shall stand in the Customer’s books in the name of the Seller and the Customer shall take appropriate action to notify all third parties of the Seller’s interest in the Goods. The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller. At the expense of the Customer, the Seller has the right to recover the Goods and to disconnect and remove the Goods and the Customer agrees to grant all necessary rights of access therefore and the Seller may exercise all the rights conferred by law on an unpaid seller. The Customer shall not re-sell, pledge or in any way charge by way of security for indebtedness any of the Goods whilst it remains the property of the Seller.

4 Representations

Any representation made by or on behalf of the Seller shall not be binding or have any force or effect whatsoever unless the Seller has expressly agreed thereto in writing.

5 Price and Payment

(a) The Price shall be quoted in sterling unless otherwise agreed with the Seller on the basis of costs prevailing at the time. If after the Contract has been agreed but before the Goods are delivered the Seller shall sustain any direct or indirect increase in cost then the Seller may, by notice in writing to the Customer, increase the Price of the Goods to reflect any increase in the cost to the Seller which is due to factors occurring after making the Contract which are beyond the reasonable control of the Seller.

(b) The Price is exclusive of:

(i) VAT which shall be due at the rate ruling on the date of the Seller’s invoice.
(ii) Charges for packing, shipping, insurance, postage, carriage, duties etc. which shall be for the account of the Customer and shall be charged to the Customer.
(iii) For Goods to be invoiced free of VAT, Customer must fulfil the applicable HMRC requirements for such invoicing and hereby agrees to hold Seller harmless against any and all subsequent claims for VAT by HMRC resulting from incorrect information and declaration received from the Customer relating to the supply of Goods and agrees to pay any outstanding monies on demand.

(c) Unless the Contract provides to the contrary payment of the Price and any additional charges and VAT (other than for third party Goods referred to in Condition 3) shall be due on or before the Date of Installation unless otherwise agreed in writing with the Seller’s Company Secretary. Time for payment shall be of the essence.

(d) Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 3% above Lloyds Bank Plc’s base rate from time to time in force and shall accrue at such rate after as well as before any judgement. Without prejudice to the foregoing the Seller may, at its discretion, require stage payments as it deems fit, including, without limitation, for work in progress on a monthly basis.

(e) No work or support shall be undertaken by the Seller if at the time such work is requested the Customer has failed to pay any outstanding monies due to the Seller.

6 Liabilities

(a) The risk in the Goods for insurance purposes shall pass to the Customer: (i) When the Seller delivers the Goods in accordance with the Terms and Conditions of the Contract to the Customer or its agents or other person to whom the Seller has been authorised by the Customer to deliver the Goods; or (ii) If the Goods are appropriated to the Customer but kept at the Seller’s premises at the Customer’s request provided that the Seller shall have no responsibility in respect of the insurance or safety of the Goods after such appropriation. The Customer should accordingly insure the Goods after such appropriation against such risks (if any) as it thinks appropriate.

(b) In spite of delivery having been made property in the Goods shall not pass from the Seller until:

(i) The Customer shall have paid the price plus VAT and any additional charges in full; and
(ii) No other sums whatever shall be due from the Customer to the Seller.

(c) Until property in the Goods passes to the Customer:

(i) The Seller reserves the right to dispose of the Goods until payment in full for the Goods has been received by the Seller in accordance with the Terms and Conditions of the Contract.
(ii) The relationship of the Customer to the Seller shall be fiduciary in respect of the Goods or other Goods in which they are incorporated or used and if the same are sold by the Customer the Seller shall have the right to trace the Goods. A like right for the Seller shall apply where the Customer uses the Goods in any way so as to be entitled to payment from a third party.

(d) If payment in accordance with the Terms and Conditions of the Contract is overdue in whole or in part the Seller may (without prejudice to any of its other rights) recover or resell the Goods or any of them and may by its servants or agents enter upon the Customer’s premises for that purpose. Such payment shall become due immediately upon the commencement of any act or proceeding in which the Customer’s solvency is involved.

(e) If any of the Goods are incorporated in or used as material for other Goods before the Seller has received payment in full the property in the whole of such Goods shall be and remain with the Seller until such payment has been made or the other Goods have been sold as aforesaid and all the Seller’s rights hereunder in the Goods shall extend to those other Goods.

(f) The Seller shall not be liable for any loss damage or expense howsoever arising from any loss of use failure or deterioration of the Goods or any loss (whether direct or indirect) of profits business contracts or anticipated saving or for any indirect or consequential loss whatsoever.

(g) The Seller shall not be liable for any loss or failure to comply with its obligations where the failure is due to acts of God, war, hostilities, civil disturbances, governmental restrictions, strikes or industrial disputes, fire, flood, inclement weather, acts or omissions of Government or any department thereof, or of third parties or any other cause whatsoever beyond the Seller’s reasonable control.

(h) The Customer is responsible for maintaining the security of its data and ensuring that its data is adequately backed up. The Customer shall keep full security copies of the Seller’s programs, databases and computer records in accordance with best computer practice. The Seller shall not be liable for any loss of the Customer’s or any third party’s data.

(j) The Seller cannot be held responsible for any bugs in any operating software, viruses, corrupt data and back-up failures.

(k) The Seller’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 this Contract shall be limited to the price of the Goods as listed in the Order Form.

(l) The Seller shall be under no liability whatever to the Customer for any direct, incidental or consequential damages.

(m) The title to Goods supplied will remain with the Seller until payment in full has been made for the Goods and all other sums which are or become due to the Seller from the Customer on account. Without prejudice thereto the Customer shall insure all Goods from delivery against loss or damage and shall maintain the same in good saleable condition. At all times before payment in full the Goods shall stand in the Customer’s books in the name of the Seller and the Customer shall take appropriate action to notify all third parties of the Seller’s interest in the Goods. The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller. At the expense of the Customer, the Seller has the right to recover the Goods and to disconnect and remove the Goods and the Customer agrees to grant all necessary rights of access therefore and the Seller may exercise all the rights conferred by law on an unpaid seller. The Customer shall not re-sell, pledge or in any way charge by way of security for indebtedness any of the Goods whilst it remains the property of the Seller.

(n) If before title in Goods has passed to the Customer, the Customer enters into liquidation or suffers a Receiver to be appointed, the Company may give notice to the Customer terminating the Contract, whereupon the Customer shall at its own expense redeliver such goods to the Company. In such cases the Company may with or without previous notice take possession of the Goods and is in such circumstances irrevocably authorised by the Customer to enter the premises on which the Goods are situated by its employees or agents together with such vehicles as are necessary and remove the same at the Customer’s expense.

7 Miscellaneous

(a) Clause headings in these Terms and Conditions are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.

(b) Any notice required to be given hereunder shall be served by posting the same by recorded delivery to the registered office of the party to be served (in the case of a company) or to the installation address specified overleaf (in the case of an individual firm or partnership). Any notice served hereunder shall be deemed to have been received 48 hours after despatch. In proving service by post it shall only be necessary to prove that communication was contained in an envelope which was duly addressed and posted in accordance with this Clause.

(c) No term in this Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 or as later amended, by a third party.

(d) If any provision of this Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable that provision shall be deemed severable and the remaining provisions of this Contract shall continue in full force and effect.

(e) No waiver or forbearance by the Seller (whether expressed or implied) in enforcing any of its rights under any Contract shall prejudice its right to do so in the future.

(f) The Seller may assign sub-contract licence or otherwise dispose of any part of its rights or obligations under any Contract without the prior written consent of the Customer.

(g) Except where the Seller and the Customer have expressly agreed in writing the Customer is deemed to have satisfied himself as to the suitability of the Goods for the purpose for which the Customer requires them and the Customer so warrants to the Seller.

(h) To enable the Seller to investigate the compatibility and/or any issues regarding the operability of the Software with the Customer Network, the Customer may have to give access to its Customer Network to the Seller. Accordingly, the Customer warrants and undertakes to the Seller that it:

(i) has obtained all the necessary and required consents from any third party to allow the Seller to have access to its Customer Network; and
(ii) it is not in and will not be in breach of any policies, standard terms or agreements in relation to its Customer Network (or any element of it) as a result of giving the Seller access to its Customer Network in accordance with the provisions of this clause. The Customer indemnifies and agrees to keep the Seller indemnified against all liabilities, costs, expenses, damages and losses (including legal fees) that the Seller may suffer as a result of a breach of the warranties given by the Customer in this clause.

(j) Where the Customer requires the Seller to create Modifications and Bespoke Code, the Customer:

(i) shall nominate one contact within their organisation to work with one nominated Seller’s contact; and
(ii) shall warrant that their contact has full power and authority to enter into and perform its obligations and will provide the Seller with any equipment, software, software licences, technical information, designs or documentation necessary for the Seller to create Modifications and Bespoke Code as required by the Customer; and
(iii) shall ensure that competent personnel are available during normal working hours to provide information and other support as required to the Seller; and
(iv) shall reimburse the Seller for any delays or omissions in its performance caused by the Customer’s failure to comply with this clause where either a fixed price has been agreed or where a time limit has been agreed; and
(v) shall provide the Seller with work space, telephone access, access to the Customer’s computer systems, software and related equipment, basic operational supplies and adequate and secure storage space for work materials if work is to be performed at the Customer’s location; and
(vi) warrants it has the right to permit the Seller, at no additional cost to the Seller, to have access to, and to copy to the extent necessary, any and all software programs of the Customer necessary for the Seller to carry out the work required; and
(vii) agrees that all Modifications and Bespoke Code work is subject to the Seller’s Software Licence Terms and Conditions.

(k) Travel and subsistence for each site visit is charged to the Customer and invoiced separately. Full details are available on request.

(l) Delays caused by the Customer and/or third parties during an installation may incur additional charges.

(m) This Contract contains provisions which relate to a wide range of Goods and/or Software provided by the Seller. Where any particular provision in these Terms and Conditions is not relevant to the Goods and/or Software we have agreed to supply to you that particular provision shall be deemed to be deleted from these Terms and Conditions, which shall be construed accordingly.

(n) All samples leaflets advertisements specifications drawings and other matter issued by the Seller together with any demonstrations made by the Seller are for illustration purposes only and shall not be binding on the Seller. They shall not form part of the Contract and this is not a sale by sample.

8 Delivery and Storage

(a) Unless the Contract provides to the contrary the Seller may deliver by instalments.

(b) Where delivery is to be made by instalments each instalment shall be treated as a separate Contract and delay, default or non-delivery in respect of any instalment by the Seller shall not entitle the Customer to cancel the remainder of the Contract.

(c) Failure by the Customer to pay for any instalment or delivery when payment is due shall entitle the Seller to withhold further deliveries.

(d) If the Customer fails to accept delivery of any Goods when delivered or in the event of any Goods being delayed at the Customer’s request or in the event of the Customer failing to make any payment for Goods when it is due the Customer shall be liable to the Seller for all additional costs incurred by the Seller in relation to such Goods or to any other Goods which the Seller is then entitled to withhold.

(e) Unless expressly agreed in writing no times quoted, specified or agreed for delivery of the Goods by the Seller shall be of the essence of the Contract.

(f) If the Seller is prevented or delayed from making delivery of any Goods by reason of acts of God, war, hostilities, civil disturbances, governmental restrictions, strikes or industrial disputes, fire, flood, inclement weather, acts or omissions of Government or any department thereof, or of third parties or any other cause whatsoever beyond the Seller’s reasonable control, the Seller may give notice in writing to the Customer either cancelling the Seller’s outstanding obligations to deliver those Goods which the Seller is prevented from delivering or extending the time for delivery by a period equivalent to that during which delivery has been prevented and the Seller shall not be bound to the Contract or be liable to pay damages for non-performance in this event.

(g) Any time given for delivery of Goods is an estimate only and the Customer shall have no claim for any loss due to late delivery. If no dates are so specified, delivery shall be within a reasonable time. The Seller reserves the right to part deliver, as it considers necessary.

(h) Goods in transit to the Seller from the Customer for any reason shall in all respects be at the Customer’s cost and risk unless other arrangements have been made to the contrary in writing.

(i) The Customer must notify the Seller and the carrier in writing by recorded delivery of any damage caused to the Goods in transit or any irregularity in the carriage or delivery of the Goods within three working days of delivery to the Customer and in default the Seller shall be under no liability therefore. No claim for non-delivery of the Goods will be considered unless the Seller and the carrier have been advised in writing of such non-delivery within seven working days of the date shown on the Seller’s advice note.

(j) The Seller reserves the right to charge the Customer for storage of Goods from the date that the Customer is notified that Goods are ready for delivery where delivery is delayed at the request of the Customer or due to default in payment.

9 Installation

When the Contract includes installation commissioning, training or support of Goods the Price does not include the provision of any special items on site including but not limited to cranes hoists scaffolding and lifts. The Seller shall not be responsible for the work of any other trade including but not limited to cutting away and making good wall surfaces ceilings tiles and decorations conduit ducting trunking ground work and builders work. Unless otherwise stated trunking conduit and ducting are not included in the Goods to be supplied by the Seller. Where cable is to be installed in conduit trunking or ducting provided by others strong draw wires shall be installed by the Customer for use by the Seller. All quotations are given on the basis of uninterrupted access to all relevant sites and a minimum of 14 days notice in writing is required for the Seller’s engineers to attend site. Where applicable all quotations allow for a maximum of two visits to site for first and second fix. Any delays which occur as a result of inclement weather non-completion of third party work or non-availability of third party supplies any act or omission on the part of the Customer or any cause beyond the Seller’s control will give rise to additional charges. The Customer shall provide any necessary mains and other electricity supplies.

10 Returns

Goods supplied correctly as ordered cannot be returned. Where a genuine error in ordering has occurred and replacements are required and the Goods in question are a standard stock item and have been kept in an ‘as new’ condition the Goods may be accepted back at the discretion of the Seller but the Customer will be liable to the Seller for all costs incurred as a result thereof. All returns of Goods to the Seller whether for repair or otherwise are at the Customer’s cost and risk.

11 Cancellation

The Contract cannot be cancelled by the Customer without the prior written consent of the Seller signed on behalf of the Seller by the Company Secretary. In the event of cancellation by the Customer the Customer shall remain liable for payment for all sums due under the Contract (including any deposit paid which shall be forfeit to the Seller) and shall indemnify the Seller against all loss and expenses occasioned by such cancellation including loss of profit. The Seller may cancel the Contract at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Customer any sums paid in respect of the Goods by the Customer after deduction of any sums due to the Seller under this clause or in any other manner whatsoever. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation. Where the Contract contains software, any terms and conditions of that software licence are also applicable.

12 Law

These Terms and Conditions shall be governed by and construed in accordance with the laws of England and the parties agree to the exclusive jurisdiction of the English courts. 

Terms and Conditions of Purchase

January 2017

1 Definitions

1.1 In these Conditions:

‘Buyer’ means du Pré Marine Ltd
‘Conditions’ means the Terms and Conditions of Purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller.
‘Contract‘ means the contract for the sale and purchase of the Goods and the supply and acquisition of the Services.
‘Delivery Address‘ means the address stated on the Order.
‘Goods‘ means the goods (including any instalment of the goods or any part of them) described in the Order.
‘Order‘ means the Buyer’s purchase order to which these Conditions are annexed.
‘Price‘ means the price of the goods and/or the charge for the Services.
‘Seller‘ means the person so described in the Order.
‘Services‘ means the services (if any) described in the Order.
‘Specification‘ includes any plans, drawings, data or other information relating to the Goods or the Services.
‘VAT‘ Value Added Tax.
‘Writing‘ includes letter and email.

1.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2 Basis of Purchase

2.1 The Order constitutes an offer by the Buyer to purchase the Goods and/or acquire the Services subject to these Conditions.

2.2 These Conditions shall apply to the Contract to the exclusion of any other terms and conditions on which any quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller.

2.3 The Order will lapse unless unconditionally accepted by the Seller in Writing within 7 days of its date.

2.4 No variation to the Order or these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

2.5 If the Goods are perishable or have a life expectancy of a fixed duration or if there are any circumstances known to the Seller which would adversely affect the life span of the Goods the Seller will forthwith advise the Buyer in Writing of all such necessary and appropriate information relating thereto which shall form part of the description of the Goods.

2.6 The Seller will supply where appropriate, and not later than the date of delivery of the Goods or Services, operator manuals, instruction manuals, lists of recommended spares and other supporting literature in relation to the Goods, together with adequate information about any conditions necessary to ensure that when put to that use, the Goods will be safe and without risks to health.

3 Specifications

3.1 The quantity, quality and description of the Goods and the Services shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in Writing by the Buyer.

3.2 Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Buyer. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.

3.3 The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services.

3.4 The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing.

3.5 If as a result of inspection or testing the Buyer is not satisfied that the Goods will comply in all respects with the Contract, and the Buyer so informs the Seller within 7 days of inspection or testing in Writing, the Seller shall take such steps as are necessary to ensure compliance.

3.6 The Goods shall be marked in accordance with the Buyer’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.

4 Price of the Goods and Services

4.1 The Price of the Goods and the Services shall be as stated in the Order and, unless otherwise so stated, shall be:

4.1.1 exclusive of any applicable VAT (which shall be payable by the Buyer subject to receipt of a VAT invoice); and
4.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than VAT.

4.2 No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in Writing.

4.3 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms and conditions of sale.

5 Terms of Payment

5.1 The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods or performance of the Services, as the case may be, and each invoice shall quote the number of the Order.

5.2 Unless otherwise stated in the Order, the Buyer shall pay the Price of the Goods and the Services within 30 days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods or Services in question by the Buyer.

5.3 The Buyer shall be entitled to set off against the Price any sums owed to the Buyer by the Seller.

6 Delivery

6.1 The Goods shall be delivered to, and the Services shall be performed at, the Delivery Address on the date or within the period stated in the Order, in either case during the Buyer’s usual business hours.

6.2 Where the date of delivery of the Goods or of performance of the Services is to be specified after the placing of Order, the Seller shall give the Buyer reasonable notice of the specified date.

6.3 The time of delivery of the Goods and of performance of the Services is of the essence of the Contract.

6.4 A packing note quoting the number of the Order must accompany each delivery or consignment of the Goods and must be displayed prominently.

6.5 If the Goods are to be delivered, or the Services are to be performed, by instalments, the Contract will be treated as a single contract and not severable.

6.6 The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.

6.7 The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods and performance of the Services.

6.8 The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer.

6.9 If the Goods are not delivered or the Services are not performed on the due date then, without prejudice to any other remedy, the Buyer shall be entitled to deduct from the Price or (if the Buyer has paid the Price) to claim from the Seller by way of liquidated damage for delay 3 per cent of the Price for every week’s delay, up to a maximum of 15 per cent.

7 Risk and Property

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.

7.2 The property in the Goods shall pass to the Buyer upon delivery, unless payment for the Goods is made prior to delivery, when it shall pass to the Buyer once payment has been made and the Goods have been appropriated to the Contract.

8 Liability

8.1 The Seller warrants to the Buyer that the Goods:

8.1.1 will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Seller or made known to the Seller in Writing at the time the Order is placed;
8.1.2 will be free from defects in design, material and workmanship for a period of 12 months after the same have been put into service (“the Guarantee Period”);
8.1.3 will correspond with any relevant Specification or sample; and
8.1.4 will comply with all statutory requirements and regulations relating to the sale of the Goods.

8.2 The Seller warrants to the Buyer that the Services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for the Buyer to expect in all the circumstances.

8.3 Without prejudice to any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract, then the Buyer shall be entitled:

8.3.1 to require the Seller to repair the Goods or to supply replacement Goods or Services in accordance with the Contract within 7 days whether or not such requirement for repair or replacement is communicated to the Buyer before expiry of the Guarantee Period;
8.3.2 at the Buyer’s sole option, and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods or Services, to treat the Contract as discharged by the Seller’s breach and require the repayment of any part of the Price which has been paid.

8.4 The Seller shall indemnity the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:

8.4.1 breach of any warranty given by the Seller in relation to the Goods or the Services;
8.4.2 any claim that the Goods infringe, or their importation, use or resale, infringes the patent, copyright, design right, trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;
8.4.3 any liability under the Consumer Protection Act 1987 in respect of the Goods;
8.4.4 any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering and installing the Goods; and
8.4.5 any act or omission of any of the Seller’s personnel in connection with the performance of the Services.
8.4.6 any failure of the goods howsoever caused.

8.5 Neither the Seller nor the Buyer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods or the Services, if the delay or failure is beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:

8.5.1 Act of God, explosion, flood, tempest, fire or accident;
8.5.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.5.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.5.4 import or export regulations or embargoes; and
8.5.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees or either the Seller or the Buyer or of a third party).

9 Insurance

9.1 The Seller shall insure to their full value any goods, tools, materials and other property provided by or through the Buyer for the Seller’s use whilst they are in the Seller’s possession or control.

9.2 The Seller will hold any insurance monies payable under this clause in trust for the Buyer.

10 Termination

10.1 The Buyer shall be entitled to cancel the Order in respect of all or part only of the Goods and/or the Services by giving notice to the Seller at any time prior to delivery or performance, in which event the Buyer’s sole liability shall be to pay to the Seller the Price for the Goods or Services in respect of which the Buyer has exercised its right of cancellation, less the Seller’s net saving of cost arising from cancellation.

10.2 The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:

10.2.1 the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
10.2.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
10.2.3 the Seller ceases, or threatens to cease, to carry on business; or
10.2.4 the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.

11 General

11.1 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract.

11.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

11.3 No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision and no admission, act or omission made by the Buyer or on its behalf shall constitute a waiver of or release of the Seller from any liability it may have under the Contract.

11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

11.5 The Order and the subject thereof shall be treated as confidential between the parties and shall not be disclosed or published to any third party for any reason without the Buyer’s prior consent in Writing.

11.6 The Seller will not use the Buyer’s name or other identity for advertising or publicity purposes without the Buyer’s prior consent in Writing.

11.7 The Goods may be sold by the Buyer to third party end users. The Contract (Rights of Third Parties) Act 1999 shall apply to these conditions.

11.8 The Contract shall be governed by the laws of England, and the Seller agrees to submit to the non-exclusive jurisdiction of the English courts.

©du Pre Marine Ltd 2016