Terms & Conditions

DIRECT ACCESS INTERNATIONAL

GENERAL CONDITIONS OF SALE – dated 1 January 2008

1. Definitions

For the purpose of any Contract to which these terms and conditions apply the following words and expressions shall mean:

2. Quotation and Conditions of Sale

2.1      Each quotation made by the Supplier shall be issued in writing and be valid for a maximum period of thirty (30) days from the date thereof.  Each quotation for Services is made on the basis that the Services will be performed in the Territory.

2.2      The Supplier shall sell Goods and Services to the Customer subject to these terms and conditions of sale only and to the exclusion (to the extent permissible by law) of all other terms, conditions, guarantees and warranties whether express or implied, statutory or otherwise.  

2.3      All orders given by the Customer to the Supplier are subject to individual written confirmation & acceptance by the Supplier.

3. Prices

3.1      The Supplier will sell to the Customer Goods and Services at the Supplier's prices in force at the date of acceptance of the order by the Supplier.

3.2      The contract delivery terms for Goods and Services will be clearly specified on the quotation, based on Incoterms 2000 definitions.

                                                      
3.3      The Supplier shall be entitled on giving the Customer not less than thirty (30) days notice to increase the Contract Price in the event of the Supplier incurring any extra costs due to increased labour or material costs or exchange rate fluctuations.

4. Terms of Payment

4.1      The Customer will pay the Contract Price for the Goods and Services (together with any applicable VAT/sales tax and any other taxes, duties and charges payable,) in accordance with Clause 5.  The Customer will pay all invoices in accordance with the agreed payment terms specified on the quotation provided to the Customer.

4.2      Payment will be made in the currency of invoicing (normally Sterling or US Dollars) without any withholding, deduction or set-off except for any liquidated damages payable pursuant to sub-clause 5.2.

4.3      If the Customer is in default with any payment then:

4.3.1     all sums due from the Customer to the Supplier shall become due and payable immediately without demand;

4.3.2     the Supplier may suspend the provision of any further Goods and Services to the Customer; and

4.3.3     the Customer shall pay the Supplier interest on all sums outstanding at an annual rate equal to 4% above the base rate of The Royal Bank of Scotland plc current from time to time until payment is made in full (whether before or after judgment).

5. Delivery

5.1      Following receipt of an order from the Customer the Supplier will advise the Customer of its proposed delivery date(s).  The Supplier shall not be deemed to have accepted any order until the delivery date(s) have been agreed between the parties.

5.2      If the parties have agreed that part of the Contract Price shall be paid prior to delivery of the Goods the Supplier will not deliver Goods until it has received such payment from the Customer and shall not be liable for any delay in delivery caused by the failure of the Customer to make such payment on or prior to the Agreed Delivery Date.

5.3      Unless otherwise agreed in writing the Supplier may deliver Goods prior to the Agreed Delivery Date and may deliver Goods in instalments by separate shipments.

5.4      Where any part of the carriage of Goods is not the Supplier’s responsibility herein, and the Customer wishes the Supplier to arrange such carriage, the Supplier shall arrange carriage for the Goods as agent for the Customer and invoice for this and any other services provided. 

6. Postponed Delivery

If the Customer requests the Supplier to postpone delivery the Supplier may charge the Customer the reasonable additional costs of handling and storage.  The Customer shall remain liable, however, to pay the Contract Price (and any applicable sales tax and any other taxes, duties and charges) in accordance with the payment terms agreed pursuant to sub-clause 5.1.

7. Cancellation of Order

The Customer shall not be entitled to cancel an order for Goods, in whole or in part, unless it pays the Supplier for any work done and materials purchased up to the date of cancellation and compensation of twenty per cent (20%) of the Contract Price of the relevant Goods cancelled provided that the aggregate sum payable by the Customer to the Supplier under this Clause 7 shall in no event exceed the Contract Price of the relevant Goods.

8. Passing of Risk and Title

8.1      The risk of loss, damage or destruction of the Goods shall pass to the Customer on delivery.

8.2      Title to the Goods, excluding Software, shall pass to the Customer upon receipt by the Supplier of the Contract Price in full.

8.3      Until the Supplier has received the Contract Price in full for the Goods:

8.3.1     the Customer shall keep the Goods in the same condition as when delivered by the Supplier and clearly identifiable as the property of the Supplier; and

8.3.2     the Customer shall keep the Goods insured against the risks of loss, damage or destruction to replacement value with a reputable insurance company and exhibit to the Supplier on request evidence of the Customer's compliance with this sub-Clause as often as reasonably requested by the Supplier.

9. Warranty

9.1      The Supplier will at its discretion, repair or replace or credit or reimburse the Customer with up to the Contract Price, where any Goods which are defective as a result of defects in design, workmanship or materials or lost, stolen or are damaged whilst at the Supplier's risk provided that the Customer has given the Supplier written notice of the loss or defect within 4 weeks of delivery.

9.2      The Supplier will rectify any failure by the Supplier to provide Services with due skill and care provided that the Customer has given the Supplier written notice of such failure within 4 weeks of the Supplier discovering any such failure.

9.3      If the Customer gives the Supplier notice of any defect, error or failure it shall provide the Supplier with all information regarding such defect, error or failure which the Supplier may reasonably require and comply with any reasonable suggestions or instructions which the Supplier may offer with a view to the diagnosis and/or remedy of such defect or error.

9.4      If the Supplier is unable to remotely remedy any defect or error in the Goods the Supplier shall  arrange, at its cost, for the return of the defective item and (unless a credit or refund is given) the delivery of the repaired or replacement item to the Customer.

9.5      If the Supplier establishes that a reported defect, error or failure is not covered by the warranties given under this Clause 9 the Customer shall be liable for the costs of the Supplier's investigative and remedial work and the repair or replacement of the Goods at the Supplier's then current prices, and for all associated carriage and insurance costs.

9.6      The Supplier shall not be liable for any failure of the Goods caused by the use of the Goods other than for the purpose for which they were designed.

9.7      The warranties given under this Clause 9 shall be void if any party other than the Supplier or its nominated repair service organisation has modified, altered, added to or repaired the Goods or has attempted to do so.

9.8      The warranties given under this Clause 9 are subject to the Customer complying with the provisions of this Clause 9 and are given in lieu of and to the extent permissible by law exclude all other guarantees, conditions and warranties implied by law including without limitation as to satisfactory quality, fitness for purpose or correspondence to description or sample

9.9      The remedies provided by this Clause 9 are subject to the Customer complying with the provisions of this Clause 9 and shall be the Customer's sole remedies in respect of any breach of warranty to the exclusion of all other remedies.

10. Termination

10.1    Either party may terminate the Contract with immediate effect if:

10.1.1   the other party commits a material breach of its obligations under the Contract, and, in the case of a breach capable of being remedied, does not remedy the breach within thirty (30) days after receipt of notice in writing from the non-defaulting party  requiring it to do so; or

10.1.2   payment of any sum due by one party to the other remains unpaid for a period of thirty (30) days after issue of final demand therefor or;

10.1.3   the other party ceases to trade or to pay its debts in the normal course of business, enters into or proposes to enter into a voluntary arrangement or composition with its creditors, becomes insolvent, bankrupt or goes into liquidation (other than for the purpose of solvent reconstruction or amalgamation) or has a receiver, administrator, trustee or similar officer appointed in respect of all or a substantial part of its business and assets or otherwise ceases to be a validly existing corporation.

10.2    The Supplier may terminate the Contract with immediate effect if the Customer suffers a significant change of ownership, or merges or consolidates with any other party with the result that control of the Customer vests in a competitor (or vice versa). 

10.3    Termination of the Contract shall have no effect on the rights and remedies of either party which have arisen prior to termination.

10.4    The Customer shall return to the Supplier promptly following termination (carriage and insurance paid) or otherwise deal with as the Supplier may request, all Goods in the Customer's possession or control which have not been paid for by the Customer.

11. Confidentiality

The parties undertake on behalf of themselves and their employees, agents and permitted subcontractors that they will keep confidential and will not use for their own purposes (other than fulfilling their obligations under the Contract) nor without the prior written consent of the other disclose to any third party any information of a confidential nature relating to the other (including, without limitation, any trade secrets, confidential or proprietary technical information, trading and financial details and any other information of commercial value) which may become known to the other under or in connection with the Contract.  This clause shall not apply to any such information which either party can show is public knowledge or was already known to it at the time of disclosure or subsequently becomes public knowledge other than by breach of the Contract or subsequently comes lawfully into its possession from a third party who was not restricted from disclosing it.  Both parties shall return to the other all confidential information of the other in written or tangible form or any other media on the termination of the Contract.  The terms of this Clause 11 shall survive the expiry or earlier termination of the Contract.

12. Liability

12.1    Except as provided in sub-clause 12.3 the Supplier's liability for any loss, damage, costs or expenses under or in connection with the Contract and in connection with the Goods and Services provided by the Supplier howsoever arising, including without limitation loss, damage, costs or expenses caused by breach of contract, negligence or breach of statutory or any other duty shall be strictly limited to a maximum amount of the Contract Price as noted in the Supplier's undertaking under sub-clause 9.1.

12.2    Furthermore the Supplier shall not be liable for any loss of profits, loss of business, loss of data or loss of use, or any other indirect, incidental, special or consequential loss or damage, whatsoever and howsoever arising, incurred by the Customer or any third party, whether in an action in contract, negligence or other tort, even if the parties or their representatives have been advised of the possibility of such damages.

12.3    The exclusions and limitations contained in sub-clauses 12.1 and 12.2 shall not apply to any loss, damage, costs and expenses in respect of any fraudulent misrepresentation or injury to, illness or death of any person caused by negligence on the part of the Supplier.

13. Force Majeure

Neither party will be liable to the other party for any delay in or failure to perform or comply with its obligations under this Agreement as a result of Force Majeure.  The affected party shall promptly notify the other of the commencement and cessation of Force Majeure.  If Force Majeure continues for a period in excess of ninety (90) days either party shall be entitled to terminate the Contract forthwith by written notice and without liability for termination.  If the Contract is terminated under this Clause 13 all orders for Goods and Services placed prior to the date of termination will be deemed to have been cancelled and the Customer shall pay the Supplier for all Goods and Services already supplied, work-in-progress and the cost of materials reasonably ordered by the Supplier in the expectation of completing the Contract.

14. Assignment/Subcontracts

14.1    Neither party may assign its rights or obligations under the Contract without the prior written consent of the other except that the Supplier may assign the Contract to another company within the Direct Access International group of companies.

14.2    The Supplier shall be entitled to delegate or subcontract performance of any of its obligations under the Contract to another company or companies within the Direct Access International group of companies.  Otherwise neither party may delegate or subcontract the performance of its obligations under the Contract without the prior written consent of the other, such consent not to be unreasonably withheld or delayed.

15. Waiver

Any failure or delay by either party to exercise or enforce any right shall not affect its right to exercise or enforce that right against the other party nor shall any waiver of any breach of any provision be taken as a waiver of any subsequent breach or of the provision itself.  To be effective any waiver must be in writing, signed by an authorised representative of the waiving party and be delivered to the other party, as noted in Clause 18.

16. Entire Agreement and Variations

The Contract embodies the entire agreement between the parties regarding its subject matter to the exclusion of any prior communications.  The parties acknowledge that neither has placed any reliance on any prior communications other than those expressly incorporated in the Contract.  The parties irrevocably and unconditionally waive any right they may have to rescind the Contract and/or claim damages for any misrepresentation whether or not contained in the Contract or breach of any warranty not contained in the Contract unless such misrepresentation or warranty was made fraudulently.  The Customer also acknowledges that all particulars, descriptions, specifications and details of weight and dimension set out in catalogues, brochures and similar documents are approximate only and intended for general guidance.  No variation of the terms and conditions of the Contract shall have effect unless it is agreed to in writing and signed by the parties' authorised representatives.

17. Severability

If any provision of the Contract, including any part of any sub-clause, be held as void, contrary to law or unenforceable, the validity and enforceability of the remainder of the Contract shall not be affected.

18. Notices

Notices shall be delivered personally, or by prepaid first class mail, or transmitted by email or facsimile (and in the case of transmission by email or facsimile followed within 3 days by a copy thereof being delivered by prepaid first class mail) to a party’s last known business address or number.  Notices shall be deemed to be given a) upon receipt in the case of personal delivery or b) within three business days of posting in the case of delivery by prepaid first class mail or c) at 10.00 am local time, country of receipt, on the next business day following confirmation on the sending party’s machine that the transmission has been successfully received in the case of transmission by email or facsimile, whichever occurs first.

19. Law and Dispute Resolution

The Agreement is governed by and shall be construed in accordance with the laws of England and except as provided below the parties submit to the non-exclusive jurisdiction of the English Courts.

In the event of any dispute between the parties in connection with this Agreement, the parties shall use all reasonable efforts to settle such dispute amicably by negotiation.  If the parties are unable to settle such dispute by negotiation within 21 days, they shall attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution Limited’s Model Mediation Procedure.  To initiate a mediation either party shall give notice in writing (“ADR Notice”) to the other party to the dispute requesting a mediation.  The mediation will start not later than 28 days after the date of the ADR Notice.

The mediation shall take place in Winchester or London and the language of the mediation shall be English. The mediation agreement shall be governed by, construed and take effect in accordance with English law.  The courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of, or in connection with, the mediation.

A party may not start any court or arbitration proceedings (save as is necessary to obtain an order for interim relief) in relation to a dispute arising out of the Agreement until it has attempted to settle it by mediation and that mediation has terminated.

20. No Third Party Beneficiaries

A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms