• Terms and Conditions for the Provision of Services

Terms and Conditions for the Provision of Services

    1. Definitions

“LD” means Lincoln Diesels Ltd.
“the Customer” means the party who has placed the Order with LD
“the Order” means the Customer’s instructions to LD to supply the Goods
“the Goods” means the goods, services or articles which are the subject of the Order
“the confirmation of Order” means the written confirmation by LD 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 LD and the Customer incorporating the Goods Conditions.

 

    2. Acceptance of Order

2.1 An order will only be valid after it has been accepted and confirmed in writing by LD.
2.2 The order is accepted by LD exclusively upon the terms and conditions set out herein unless otherwise expressly agreed by LD in a written memorandum which shall refer to the Contract and be annexed to the Confirmation of Order. No other conditions, terms, provisions or other representations whatever whether referred to in negotiations or set out in the Customer’s Order shall be incorporated into the Contract unless set out in writing in a memorandum which must be annexed to the Confirmation of Order.

 

    3. Travelling Expenses

The Customer shall reimburse LD in respect of all travelling and transport costs (including but not limited to the cost of insurance and costs of carriage of personal luggage and tools) incurred by LD its employees or agents in connection with the provision of the Services.

 

    4. Prices

(a) The price(s) payable for the Services shall be calculated in accordance with LD’s current man/hour rates unless a fixed rate or sum has been agreed.
(b) If by reason of any law, governmental order or regulation the price and/or terms of payment hereunder or any increase change or variation thereto or the right of LD to require or receive any such payment shall be altered, prohibited or hindered in any way LD may forthwith thereupon terminate the Contract by notice to the Customer.
(c) All prices are exclusive of VAT which shall be added at the rate of force at the appropriate time. The Customer shall be liable to pay (or if paid by LD shall reimburse LD in respect of) all taxes, duties and fees payable in connection with the supply of the Services hereunder.

 

    5. Payment

(a) The price, including, where applicable, travelling and carriage charges and any disbursements by LD personnel shall be paid on the due date which (in the absence of any agreement to the contrary) is 14 days from the date of LD’s invoice.
(b) The mode of payment of the invoice, and a note of any advance payment received or required by LD 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 LD’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 LD, and it includes in full any bank or exchange charges levied against LD as a result of such conversion.
(c) Where any advance payment is required by LD the Contract shall be conditional upon its receipt by LD.
(d) The Customer shall in no circumstances be entitled to make any deduction from the price payable by way of set-off or otherwise in respect of any claim or counterclaim which it may have against LD.
(e) If the Customer shall default in payment of the price on the due date without prejudice to any other of LD’s rights interest shall accrue thereafter from day to day (as well before as after judgement) on any sums outstanding until payment is made at an annual rate of 4% above the HSBC Bank PLC base lending rate for the time being in force.
(f) If the Customer shall at any time default in payment of the price on the due date or if the Customer’s credit standing is at any time in the opinion of LD impaired for any other reason LD shall in addition and without prejudice to any other of its rights, have the right:-
(i) to demand forthwith payment for all services provided to the Customer whether or not any such payment is due; and/or
(ii) to supply services on a cash-in-advance basis or require the Customer to provide security for future payments satisfactory of LD.
(g) Where full payment has not been received by LD on the due date LD 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 4 percent above HSBC Bank PLC’s Base Lending Rate for the time being in force.

 

    6. Hours of Work

(a) LD’s engineers shall attempt (so far as possible) to comply with any normal hours of work established by the Customer, and will do their best within the constraints of the job to co-ordinate their work with the other work which needs to be undertaken. For health and safety reasons LD engineers shall not be asked to work for more than 14 hours in any one day including driving time and recommended rest breaks except in exceptional circumstances with an absolute maximum of 16 hours in any one day.  The Customer must also allow adequate uninterrupted rest time between work periods, which will include 8 hours sleeping time per day, which may be reduced with the agreement of the engineer to no less than six hours. In all cases, the engineer shall have the right to stop work if he feels that he can no longer work safely or accurately.
(b) The Customer shall certify on LD’s standard form the hours actually worked by LD’s personnel as well as the work carried out by them.
(c) Reasonable travelling time (as well as the time spent performing the Services) will be charged to the Customer as if such time was expended performing the Services.
(d) Waiting time, time expended searching for accommodation and time expanded reporting to any relevant authorities shall also be charged as working time, in so far as working time is lost thereby.

 

    7. Safety Regulations

(a) LD’s employees and agents are instructed to comply with any safety regulations in force.
(b) The Customer shall take all necessary measures for the protection of persons and property at the place where the Services are to be performed. The Customer shall fully inform LD in advance of all existing safety regulations and shall notify LD of any and all breaches of such regulations by its employees or agents. In the case of serious breaches the Customer can (if LD agrees) refuse the relevant person(s) admittance to the place for performance of the Services.
(c) It is the right of LD’s employees, subcontractors or agents to refuse to work in an area which they deem unsafe.

 

    8. Technical Assistance

(a) The Customer shall provide technical assistance at its own cost and in particular (without limitation) shall:
(i) provide all necessary suitable assistants including (without limitation) carpenters, fitters, staging builders and such other skilled workers and assistances as maybe required for the provision of Services for the duration of the Services. Such assistants shall comply with all reasonable instructions of LD. Any loss or damage whatsoever caused either directly or indirectly by such assistants shall be the sole responsibility of the Customer and LD accepts no such liability whatsoever howsoever arising from any damage loss or injury caused by such assistants howsoever arising;
(ii) Undertake staging work including the procurement of the necessary construction materials;
(iii) provide, according to LD’s specification, a suitable working platform or pontoon, as the case may be, for outboard work. A motor boat shall remain in constant readiness in the immediate vicinity of the place of work when this work is undertaken afloat;
(iv) provide all necessary heavy appliances and equipment and tools (for example lifting appliances), as well as the necessary requisite materials (for example word or scaffolding for staging, sealing materials and lubricants);
(v) provide heating, lighting, power current and compressed air, including all necessary connections;
(vi) provide rooms needed for the safekeeping of tools. Such rooms shall be dry and capable of being locked;
(vii) transport to the place of work articles required for the Services that have been delivered in advance. The Customer shall protect such articles required for the Services against injurious influences of all kinds and clean the articles required for the work;
(viii) provide suitable safe and thief proof rest rooms (with heating, lighting, washing facilities and sanitary equipment).
(ix) provide such materials and take all other actions that are necessary for the adjustment of the object of supply and for the carrying out of a test as provided for in the contract.
(b) The technical assistance shall also be such as to ensure that the Services can be commenced immediately after LD’s arrival. So far as special drawings or instructions are required from LD, LD shall use its reasonable endeavours to make these available to the Customer in good time.
(c) If the Customer fails to fulfil its obligations under this Condition, LD shall have the right to carry out such obligations at the Customer’s cost.

 

    9. Extent of Services

LD shall advise the Customer of the extent of the Services. It is agreed that LD shall be entitled to rely on the opinion of a classification society or of its authorised representative. The Customer shall, however, itself make the decision on the extent and practicality of the Services and to that extent assume the risk for such decision.

 

    10. Time Limit for provisions of the Services

All statements on any time limit for provision of the Services are approximately only. LD shall be under no liability for any loss, injury, damage or expense whatsoever consequent upon any delay from whatever cause including (without limitation) LD’s negligence. Delay shall not entitle the Customer to cancel the Contract.

 

    11. Inspection and Rejection

The Customer shall inspect the work effected by the Services as soon as the Customer receives notice that the Services have been completed and that any test which may have been specified in the Contract has been carried out. Such inspection shall be deemed to constitute acceptance by the Customer unless the Customer notifies LD of any defect within seven days of the date of receipt by the Customer of notice that the Services have been completed.

 

    12. Force Majeure

LD shall not be liable to the Buyer for any loss or damage which may be suffered by the Customer as a direct or indirect result of the supply of the Services by LD being directly or indirectly prevented, hindered or delayed by reason of any circumstances outside the control of LD and affecting the provision of all or any part of the Services by LD’s normal means, or other circumstances whatsoever, including (without limitation) any act of God, war, riot, strike, lock-out, trade dispute or labour disturbance, accident, breakdown of plant or machinery, failure or shortage of power supplies, fire, flood, drought, explosion, difficulty in obtaining workmen, materials or transport, refusal of any license or permit or any other sanction or request of any Government or government authority. In the event of any such circumstances LD shall have the option (exercisable by notice to the Customer) to terminate the Contract (whereupon both LD and the Customer shall be relieved of all liability under the Contract) in all cases without incurring any liability for any loss or damage suffered by the Buyer as a result.

 

    13. Termination

If the Customer shall fail to make any payment when it becomes due, or shall default in the due performance or observance of any other obligation under the Contract, or shall enter into any composition or arrangement with creditors, or shall pass a resolution or the Court shall make an order that the Customer shall be wound up (otherwise than for the purpose of amalgamation or reconstruction), or if a receiver shall be appointed over any of its assets or undertakings, or (being a natural person) if a receiving order is made against him or he shall be adjudged bankrupt or if the Customer shall take or suffer any similar action in consequence of debt, LD may cancel further provision of Services and by notice in writing to the Customer may forth with determine the Contract, without prejudice to its rights under the Contract and otherwise at law.

 

    14. Warranty, Liability and Indemnity

(a) LD warrants that it will exercise reasonable skill and care in executing the Services. If the Services do not conform with the warranty LD shall take such steps as it deems necessary to rectify any defect. PROVIDED THAT LD’s liability shall in no event exceed the lesser of £5,000 or the price(s) payable or paid by the Customer for the Services and performance of the above option (as limited by this provision)shall constitute an entire discharge of LD’s liability under the Warranty.
(b) The forgoing warranty is conditional upon:-
(i) LD receiving from the Customer within seven (7) days of discovery full details of any defect or deficiency, but in any case within 3 months following completion of the service;
(ii) the Customer affording LD reasonable opportunity to make its own inspection;
(iii) the Customer complying with any instructions or recommendations of LD.
(c) If it is found in LD’s sole judgement that the alleged defect is not covered by the terms of the foregoing warranty or if the warranty claim is made outside of the relevant warranty period the Customer shall pay all cost of repair at LD’s then current rates and all transportation costs from LD’s premises to the Customer’s premises.
(d) Save as provided in Condition 14(a) LD shall have no liability to the Customer (except in respect of death or personal injury resulting from negligence) in respect of any deficiency in the Service or other breach of contract of whatsoever nature or other default or negligence on the part of LD its employees sub-contractors or agents and all conditions warranties or other terms, whether expressed or implied, statutory or otherwise, in relation to the Services, their standard and fitness for any purpose are hereby excluded. Without limiting the foregoing:-
(i) LD shall not be liable in respect of any loss or damage whatsoever arising from the claim of any person, firm or company against the Customer nor for any loss of profits, loss of business, economic loss or other consequential loss or damage suffered by the Customer
(ii) all recommendations and advice given by or on behalf of LD are given without liability on the part of LD
(iii) all drawings, photographs, illustrations, specifications, performance data, dimensions, weights and the like, contained in any literature or other material supplied by LD under or in connection with the Contract or otherwise communicated to the Customer are provided or made by LD in the belief that they are as accurate as reasonably possible but they shall not be taken as representation by LD nor are they warranted to be accurate
(e) The Customer shall indemnify LD in respect of any loss or damage whatsoever arising from the claim of any person against LD in relation to the Services.

 

    15. Customer’s Undertakings

The Customer accepts full liability for and shall at all times indemnity LD against all actions claims demands costs charges and expenses whatsoever arising out of any loss or damage to any person firm company or property by reason of LD having relied on any data, documents, drawings gauges, samples, models or the like supplied to LD by or at the instigation of the Customer in connection with the performance of the Contract.

 

    16. Health and Safety at Work etc. Act 1974

The Customer hereby undertakes to take all steps sufficient to ensure that the working environment complies with the latest Health and safety Regulations and that the LD Engineer is properly training in the local health and safety procedures.

 

    17. Cancellation by the Customer

In the event that the Customer cancels the Contract. LD shall be entitled to be paid for all expenses and engineer’s time spend on the contract up until the time of cancellation as well as any expenses and time required in order to return to his normal place of work.

 

    18. Confidentiality

18.1 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 LD’s exclusive property. Such drawings or technical documents may not without LD’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 LD.
18.2 At the end of the Contract the Customer shall return to LD 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.

 

    19. Assignment

The Contract is personal to the Customer, which shall not assign or charge the benefit thereof in any manner whatsoever without LD’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.

 

    20. Law

The Contract shall in all respects be constructed and operate in accordance with English law, and the Customer hereby submits to the jurisdiction of the English courts, whose judgements may be enforced in other jurisdictions.  The European Union Regulation 1215 / 2012 shall not apply to this contract. The Customer hereby undertakes not to invoke EU regulation 1215/2012 and further undertakes that any legal action or proceeding which they wish to initiate will be brought by the Customer exclusively in England under the Laws of England.

 

    21. Variation

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. The granting by LD to the Customer of time or any other indulgence forbearance or concession shall in no way prejudice or constitute a waiver of LD’s entitlement to enforce any of its rights under the Contract.

 

    22. Notices

22.1 Notices shall be made in writing and posted in a first-class pre-paid envelope to the Customer’s or Seller’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.
22.2 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)

 

    23. Construction

The clause headings hereto shall not affect the construction of these Conditions.

 

CCP.Dl0(j)/J1-2-8.7.85
As amended 31.10.19
TERMS AND CONDITIONS FOR PROVISION OF SERVICES
These terms and conditions shall apply to all contracts of Service entered
into by DMG.
Definitions
“Services Conditions” means these Terms and Conditions for the provision
of Services.
“DMG” means Simplex-Turbulo Group Limited trading as Diesel and Marine
Group, consisting of all companies within the Group including SimplexTurbulo Company Ltd, Lincoln Diesels Ltd, Dorman Diesels, Temple
Propulsion Services and STW Engineering GmbH, whose registered office
is Wherwell Priory, Wherwell, Hampshire, SP11 7JH, United Kingdom,
company registration number 00306440, VAT number GB 754910226.
“the Customer” is the person, firm or company ordering the Services from
DMG.
“the Services” are all and any of the services, carried out by DMG or
contracted personnel, including (without limitation) assembly, fitting and
repair installation to be provided by DMG and also goods and components.
“the Price” means the price for the services (exclusive of Value Added Tax)
specified in the Confirmation of Order.
“the Order” means the Customer’s instructions to DMG to provide the
Services.
“the Confirmation of Order” means the written confirmation by DMG of the
Order.
“the Contract” means the contract for the provision of the Services made
between DMG and the Customer incorporating the Services Conditions.
“you” and “your” refers to the person acting on behalf of the customer.
“he” and “him” shall include the feminine and the singular shall include the
plural.
Customer’s warranty
By placing an order with us, you warrant that:
If you are acting for a third party such as a partnership or company,
you are authorised by that third party to place the order with us.
If you are acting as a sole trader, you warrant that you are over the age
of 18.
The information which you provide to us during the process of placing
an order is accurate, complete and not misleading and you agree that
you are responsible for the consequences resulting from any
inaccuracy or incomplete or misleading information.
You agree to be bound by these Service Conditions and that all other
contractual conditions are excluded unless expressly accepted in
writing by DMG.
The contract has not been induced by any representations orally or in
writing made by DMG or its employees, directors or agents.
You agree to be bound by the laws of England and Wales and that any
dispute will be settled exclusively within the jurisdiction of the courts of
England and Wales, except in so far as it may be necessary to enforce
a decision of the courts of England and Wales in another country.
Each order by you will be deemed to be an offer by you to purchase
the Services subject to these terms. No contract of sale will come into
existence until DMG has despatched the service engineers or sent a
confirmation of order. Each order placed by you will constitute a
separate contract. No variation, amendment or cancellation will be valid
unless agreed to in writing by DMG.
Acceptance of Order
Customer orders are subject to DMG’s confirmation of order. Normally
DMG will accept the order by providing a written confirmation of order.
However, especially in urgent cases, DMG may confirm the order by
despatching the service engineers. No contract of service will come
into existence until DMG has sent this confirmation of order or until DMG
has despatched the service engineers, whichever shall occur first.
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.
Travelling Expenses
The Customer shall reimburse DMG in respect of all travelling and transport
costs (including but not limited to the cost of insurance and costs of carriage
of personal luggage and tools) incurred by DMG its employees, subcontractors or agents in connection with the provision of the Services.
Price
The price(s) payable for the Services shall be calculated in accordance
with DMG’s current man/hour rates unless a fixed rate or sum has been
agreed.
If by reason of any law, governmental order or regulation the price
and/or terms of payment hereunder or any increase change or variation
thereto or the right of DMG to require or receive any such payment shall
be altered, prohibited or hindered in any way DMG may forthwith
thereupon terminate the Contract by notice to the Customer.
All prices are exclusive of VAT, local taxes or duties which shall be
added at the rate in force at the appropriate time. The Customer shall
be liable to pay (or if paid by DMG shall reimburse DMG in respect of)
all taxes, duties and fees payable in connection with the supply of the
Services hereunder.
Payment
The price, including, where applicable, travelling and carriage charges
and any disbursements by DMG personnel shall be paid on the due
date which (in the absence of any agreement to the contrary) is 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.
Where any advance payment is required by DMG, the Contract shall
be conditional upon its receipt by DMG.
Time for payment as stipulated in the Confirmation of Order shall be the
essence of the Contract. In the case of payment by instalments, each
instalment shall be paid for separately.
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.
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 five (5) per cent above HSBC Bank PLC’s
Base Lending Rate for the time being in force.
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.
If the Customer shall at any time default in payment of the price on the
due date or if the Customer’s credit standing is at any time in the opinion
of DMG impaired for any other reason DMG shall in addition and without
prejudice to any other of its rights, have the right:-
i. to demand forthwith payment for all services provided to the
Customer whether or not any such payment is due; and/or
ii. to supply services on a cash-in-advance basis or require the
Customer to provide security for future payments satisfactory to
DMG.
Hours of work
DMG shall attempt (so far as possible) to comply with any normal hours
or work established by the Customer.
The Customer shall certify on DMG’s standard form the hours actually
worked by DMG’s personnel as well as the work carried out by them.
Reasonable travelling time (as well as the time spent performing the
Services) will be charged to the Customer as if such time was
expended performing the Services.
Waiting time, time expended searching for accommodation and time
expended reporting to any relevant authorities shall also be charged as
working time, in so far as working time is lost thereby.
The customer confirms that DMG’s engineer(s) will be granted a break
of 15 minutes after every two (2) hours worked with 30 minutes break
for lunch, and if DMG’s engineer(s) are requested to work overtime,
they will be permitted not less than eight (8) hours undisturbed rest after
16 hours of work.
Safety regulations
DMG’s employees, sub-contractors and agents are instructed to
comply with any safety regulations in force.
The Customer shall take all necessary measures for the protection of
persons and property at the place where the Services are to be
performed. The Customer shall fully inform DMG in advance of all
existing safety regulations and shall notify DMG of any and all breaches
of such regulations by its employees, sub-contractors or agents. In the
case of serious breaches the Customer can (if DMG agrees) refuse the
relevant person(s) admittance to the place for performance of the
Services.
It is the right of DMG’s employees, sub-contractors or agents to refuse
to work in an area they deem unsafe.
Technical assistance
The Customer shall provide technical assistance at its own cost and in
particular (without limitation) shall:
i. provide all necessary suitable assistance including (without
limitation) carpenters, fitters, staging builders and such other
skilled workers and assistants as may be required for the provision
of Services for the duration of the Services. Such assistants shall
comply with all reasonable instructions of DMG. Any loss or
damage whatsoever caused either directly or indirectly by such
assistants shall be the sole responsibility of the Customer and
DMG accepts no such liability whatsoever howsoever arising from
any damage loss or injury caused by such assistants howsoever
arising;
ii. undertake staging work including the procurement of the
necessary construction materials;
iii. provide, according to DMG’s specification, a suitable working
platform or pontoon, as the case may be, for outboard work. A
motor boat shall remain in constant readiness in the immediate
vicinity of the place of work;
iv. provide all necessary heavy appliances and equipment and tools
(for example lifting appliances), as well as the necessary requisite
materials (for example wood or scaffolding for staging, Sealing
materials and lubricants);
v. provide heating, lighting, power current and compressed air,
including all necessary connections;
vi. provide rooms needed for the safekeeping of tools. Such rooms
shall be dry and capable of being locked;
vii. transport to the place of work for articles required for the Services
that have been delivered in advance. The Customer shall protect
such articles required for the Services against injurious influences
of all kinds and clean the articles required for the work;
viii. provide suitable safe and theft proof rest rooms (with heating,CCP.Dl0(j)/J1-2-8.7.85
As amended 31.10.19
lighting, washing facilities and sanitary equipment;
ix. provide such materials and take all other actions that are
necessary for the installation and/or adjustment of the object of
supply and for the carrying out of a test as provided for in the
contract.
The technical assistance shall also be such as to ensure that the
Services can be commenced immediately after DMG’s arrival. So far as
special drawings or instructions are required from DMG, DMG shall use
its reasonable endeavours to make these available to the Customer in
good time.
If the Customer fails to fulfil its obligations under this Condition, DMG
shall have the right to carry out such obligations at the Customer’s cost.
Extent of Services
DMG shall advise the Customer of the extent of the Services. It is agreed
that DMG shall be entitled to rely on the opinion of a classification society
or of its authorised representative. The Customer shall, however, itself make
the decision on the extent and practicality of the Services and to that extent
assume the risk for such decision.
Time limit for provision of Services
All statements on any time limit for provision of the Services are approximate
only. DMG shall be under no liability for any loss, injury, damage or expense
whatsoever consequent upon any delay from whatever cause including
(without limitation) DMG’s negligence. Delay shall not entitle the Customer
to cancel the Contract.
Inspection and rejection
The Customer shall inspect the work effected by the Services as soon as
the Customer receives notice that the Services have been completed and
that any test which may have been specified in the Contract has been
carried out. Such inspection shall be deemed to constitute acceptance by
the Customer unless the Customer notifies DMG of any defect within seven
(7) days of the date of receipt by the Customer of notice that the Services
have been completed.
Force majeure
DMG shall not be liable to the Customer for any loss or damage which may
be suffered by the Customer as a direct or indirect result of the supply of
the Services by DMG being directly or indirectly prevented, hindered or
delayed by reason of any circumstances outside the control of DMG and
affecting the provision of all or any part of the Services by DMG’s normal
means, or other circumstances whatsoever, including (without limitation)
any act of God, war (whether declared or not), riot, strike, lock-out, trade
dispute or labour disturbance, accident, breakdown of plant or machinery,
failure or shortage of power supplies, fire, flood, drought, explosion,
difficulty in obtaining workmen, materials or transport, refusal of any license
or permit or any other sanction or request of any Government or government
authority. In the event of any such circumstances DMG shall have the option
(exercisable by notice to the Customer) to terminate the Contract
(whereupon both DMG and the Customer shall be relieved of all liabilities
under the Contract) except to the extent that the Customer shall pay for all
expenses incurred by DMG prior to the cancellation of the contract. DMG
shall have no liability for any loss or damage suffered by the Customer as a
result.
Termination
If the Customer shall fail to make any payment when it becomes due, or
shall default in the due performance or observance of any other obligation
under the Contract, or shall enter into any composition or arrangement with
creditors, or shall pass a resolution or the Court shall make an order that the
Customer shall be wound up (otherwise than for the purpose of
amalgamation or reconstruction), or if a receiver shall be appointed over
any of its assets or undertakings, or (being a natural person) if a receiving
order is made against him or he shall be adjudged bankrupt or if the
Customer shall take or suffer any similar action in consequence of debt,
DMG may cancel further provision of Services and by notice in writing to the
Customer may forthwith determine the Contract, without prejudice to its
rights under the Contract and otherwise at law.
Warranty, Liability and Indemnity
DMG warrants that it will exercise reasonable skill and care in executing
the Services. If the Services do not conform to the warranty DMG shall
take such steps as it deems necessary to rectify any defect
PROVIDED THAT
DMG’s liability shall in no event exceed the lesser of £10,000 or
the price(s) payable or paid by the Customer for the Services and
performance of the above option (as limited by this provision) shall
constitute an entire discharge of DMG’s liability under the
warranty.
The foregoing warranty is conditional upon:-
i. DMG receiving from the Customer within seven (7) days of
discovery full details of any defect or deficiency, but in any case
within one (1) month following completion of the service;
ii. the Customer affording DMG reasonable opportunity to make its
own inspection;
iii. the Customer complying with any instructions or
recommendations of DMG.
If it is found in DMG’s sole judgement that the alleged defect is not
covered by the terms of the foregoing warranty or if the warranty claim
is made outside of the relevant warranty period the Customer shall pay
all cost of repair at DMG’s then current rates and all transportation costs
from DMG’s premises to the Customer’s premises.
Save as provided in condition 15.1 DMG shall have no liability to the
Customer (except in respect of death or personal injury resulting from
negligence) in respect of any deficiency in the Service or other breach
of contract of whatsoever nature or other default or negligence on the
part of DMG its employees sub-contractors or agents and all conditions
warranties or other terms, whether expressed or implied, statutory or
otherwise, in relation to the Services, their standard and fitness for any
purpose are hereby excluded. Without limiting the foregoing:-
i. DMG shall not be liable in respect of any loss or damage
whatsoever arising from the claim of any person, firm or company
against the Customer nor for any loss of profits, loss of business,
economic loss or other consequential loss or damage suffered by
the Customer;
ii. all recommendations and advice given by or on behalf of DMG
are given without liability on the part of DMG;
iii. all drawings, photographs, illustrations, specifications,
performance data, dimensions, weights and the like, contained in
any literature or other material supplied by DMG under or in
connection with the Contract or otherwise communicated to the
Customer are provided or made by DMG in the belief that they are
as accurate as reasonably possible but they shall not be taken as
representation by DMG nor are they warranted to be accurate.
The Customer shall indemnify DMG in respect of any loss or damage
whatsoever arising from the claim of any person against DMG in relation
to the Services.
Confidentiality
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.
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.
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.
Law
The Contract shall in all respects be constructed and operate in accordance
with the laws of England and Wales. All disputes shall be subject to the
exclusive jurisdiction of the courts of England and Wales, except in so far
as it may be necessary to enforce a judgement of the courts of England and
Wales in another country.
Variation
Except as provided in clause 8.3 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.
Waiver
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 18.
Notices
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.
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)
General
The clause headings hereto shall not affect the construction of these
Goods Conditions.
DMG’s rights are cumulative and not exclusive
If any provision or part of a provision of this agreement shall be, or held
to be by any authority or court of competent jurisdiction, invalid or
unenforceable, such invalidity or unenforceability shall not affect the
other provisions or parts of such provisions of the contract, all of which
shall remain in force

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