DUNLOP AIRCRAFT TYRES LIMITED SELLING CONDITIONS
1.1 In this Agreement unless the context otherwise requires the following words have the following meanings:
“Agreement” means a contract between the Company and the Customer incorporating the Conditions;
“Company” means Dunlop Aircraft Tyres Limited;
“Conditions” means these conditions of sale;
”Customer” means any person, firm, company, or corporation whatsoever dealing with the Company;
“Goods” means any products and/or goods ordered by the Customer from the Company and any goods, products and/or materials which are to be utilised in the performance of the Services;
“Intellectual Property Rights” means any patent, copyright, database right, design right (registered and/or unregistered), trade mark (registered and/or unregistered), know how, or other industrial or intellectual property right subsisting anywhere in the world whether in existence at the date of this Agreement or arising after the date of this Agreement and all rights to apply for the same in respect of the Company and any application for any of the foregoing;
“Parties” means the Company and the Customer; and
“Services” means any services and/or work performed by the Company for the Customer.
2.1 Reference to any gender shall include all genders. Words indicating a person shall include bodies of persons whether corporate or incorporate.
2.2 Reference to any statute or statutory provision includes a reference to the same as from time to time amended, extended, re-enacted or consolidated and all subordinate legislation made pursuant to it and including any other similar legislation in any other jurisdiction provided that the Company’s liability is not increased and/or its rights under this Agreement materially altered by such amendment, extension, re-enactment or consolidation.
2.3 Any reference in this Agreement to a clause is to a clause of this Agreement unless otherwise stated.
2.4 The headings of this Agreement shall not affect its construction or interpretation.
3.1 Goods and/or Services are sold, supplied or provided by the Company only on the Conditions. All orders for Goods or Services placed by or on behalf of the Customer with the Company, the acceptance by the Customer of the Goods or Services or any part thereof, or any conduct by the Customer in confirmation of the transaction after receipt by the Customer of this document shall constitute unqualified acceptance by the Customer of the Conditions.
4. Prevailing Conditions
4.1 In any case where the Customer’s written conditions conflict with this Agreement, the terms of this Agreement shall prevail.
5. Passing of Risk
5.1 Risk in any Goods supplied within the United Kingdom shall pass to the Customer at the time of delivery. Delivery shall be deemed to occur:
5.1.1 when the Goods arrive at the place of delivery designated by the Customer if the Company delivers the Goods by its own transport or it arranges transport; or
5.1.2 in all other cases when a carrier or agent collects the Goods for transport to the Customer.
5.2 Risk in any Goods supplied outside the United Kingdom shall pass to the Customer when the Company delivers the Goods FCA (free carrier) within the meaning of the Incoterms 2000.
5.3 Clauses 5.1 and 5.2 shall not apply to Goods sent to the Company by the Customer on which the Company performs Services. Risk in such Goods shall remain with the Customer at all times.
5.4 Clauses 5.1 and 5.2 shall not apply to Goods which the Customer orders and requests the Company stores on behalf of the Customer. Risk in such Goods shall pass to the Customer when the Goods are put into storage by the Company.
5.5 The Customer shall arrange for any Goods to be repaired pursuant to a repair order to be sent to the Company at the Customer’s expense.
6. Retention Of Title
6.1 Whether or not the risk in the Goods has passed to the Customer pursuant to clauses 5.1 and 5.2, the property in the Goods shall be and remain in the Company until the Company has received payment in full for those Goods from the Customer and payment in full for any other Goods supplied by the Company to the Customer which are overdue for payment. Pending receipt by the Company of such payments, the Customer shall hold the Goods for the Company as fiduciary bailee.
6.2 Clause 6.1 shall not apply to Goods on which the Company is to perform Services. Title in such Goods shall remain with the Customer.
7.1 The Customer shall pay for the Goods and/or Services on the terms specified in the invoice.
7.2 Time for payment shall be of the essence.
7.3 No payment shall be deemed to have been received until the Company has received payment in full and cleared funds.
7.4 Failure by the Customer to pay such sums as are due in respect of the invoice shall entitle the Company to suspend further deliveries of Goods or provision of Services or holding Goods to the order of the Customer.
7.5 All payments shall be made to Dunlop Aircraft Tyres Limited, 40 Fort Parkway, Erdington, Birmingham B24 9HL, England or to such other company or address or bank account as the Company may in its sole discretion from time to time notify to the Customer.
8. Cancellation of orders
8.1 Where the Customer cancels an order on or after a date that leaves less than the quoted lead time before the quoted delivery date. The Company may, at its sole discretion, raise invoice(s) for 15% of the value of the order that is being cancelled.
9. Deferred Payments
9.1 The Company has the right, in its absolute discretion, to refuse deferred payment terms to any Customer.
10.1 If the Customer fails to make payment by the due date the Company may, without prejudice to any other rights or remedies it may have, charge interest on a daily basis (both before and after judgement) on the amount unpaid at the rate of 2% above the base rate from time to time of the Bank of England or the rate of interest prescribed by law, whichever is the higher.
11. Price Variation
11.1 Unless otherwise agreed in writing the Company reserves the absolute right at any time to alter any of its prices without any notice to the Customer whatsoever in respect of Goods and/or Services. The price charged shall be the price for the Goods or Services on the date of despatch of the Goods or on the start date of the provision of Services by the Company.
12. Storage of Goods
12.1 The Customer may request the Company to store Goods on its behalf which the Company has manufactured for the Customer pursuant to a purchase order or repaired for the Customer pursuant to a repair order.
12.2 The Company may, at its sole discretion, agree to store such Goods on behalf of the Customer.
12.3 The Company may charge the Customer for storing the Goods at the rate of 10% of the price for the Goods stored per month or part month until the Goods are delivered to the Customer or the Customer requests the Company to dispose of the Goods. The Company will not usually invoice the Customer for storage charges prior to delivery of the Goods to the Customer but may invoice the Customer for storage charges on an interim basis at its sole discretion.
12.4 Although the due date for payment for such Goods shall usually be postponed until the due date in the invoice raised by the Company after the Goods are delivered to the Customer after storage, the Company may raise invoices on an interim basis at its sole discretion for all or part of the price for Goods being stored.
13.1 The Company may immediately terminate this Agreement and defer or cancel any further deliveries and/or Services to be performed or being performed without prejudice to its rights to any unpaid purchase price of Goods delivered and/or Services provided and to damages for any loss suffered in consequence thereof if the Customer:
13.1.1 fails to make any payment when due;
13.1.2 breaches the terms of this Agreement (and if remediable the breach has not been remedied within 7 days of the Company giving notice requiring it to be remedied);
13.1.3 persistently breaches any one or more terms of this Agreement;
13.1.4 ceases or threatens to cease to carry on business; and/or
13.1.5 is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application or the giving of any notice) by it or by any other person in respect of any of these circumstances (otherwise than for the purpose of amalgamation or reconstruction where the corporate body, as amalgamated or reconstructed, accepts in full the Customer’s liability to pay for all Goods and Services provided to the Customer).
13.2 If the Company has the right to terminate this Agreement:
13.2.1 the Company may enter, without prior notice, any of the Customer’s premises (or premises of third parties with their consent) where Goods owned by the Company may be and repossess and use or sell any Goods found by the Company so as to discharge any sums due to the Company from the Customer under this Agreement or any other agreement between the Parties;
13.2.2 the Company may withhold delivery of any undelivered Goods and stop any Goods in transit;
13.2.3 the Company may withhold the performance of any of the Services and cease any Services in progress;
13.2.4 the Company may cancel, terminate and/or suspend any agreement between the Parties; and/or
13.2.5 all monies owed by the Customer to the Company shall immediately become due and payable.
13.3 The Company shall have a lien over all Goods belonging to the Customer which are in the Company’s possession. Upon termination of the Agreement for any reason if any monies due to the Company have not been paid within 7 days of such termination the Company may sell any Goods over which it has a lien (and the Customer hereby agrees that the Company may give good title for such Goods) and shall apply the proceeds of sale firstly in discharging any costs and expenses of sale, secondly in paying any interest owed by the Customer to the Company, thirdly in payment of any principal sums owed by the Customer to the Company and fourthly shall account to the Customer for the remainder (if any).
14. Delay In Delivery
14.1 Any dates given for shipment or delivery by the Company will be as accurate as possible but may vary due to the need for the Company to estimate freight times. The Company shall not be liable for and the Customer shall not terminate this Agreement for non delivery or delay in delivery directly or indirectly caused by or resulting from events or circumstances beyond the Company’s reasonable control (including without limitation supplier’s delays and trade disputes, whether of the Company’s employees or otherwise, any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant or renew a necessary licence or consent). In the event of any deliveries being so suspended or delayed the due date for payment by the Customer shall be correspondingly extended. If deliveries are suspended for 6 months or more either Party may, by notice in writing to the other cancel the Agreement whereupon the Company shall either issue a credit note or invoice as appropriate to the Customer for such amount as the Company in its sole discretion considers appropriate.
15.1 The Company undertakes at its option to repair or replace the Goods or refund the Customer for any of the Goods of its manufacture which are defective by reason of defective material, design or workmanship for a period of 12 months from the date of delivery of such Goods and undertakes at its option to repair or replace the Goods or refund the Customer or re-perform the Services for any of the Goods on which the Company has performed a Service which are defective by reason of defective workmanship or defective material for a period of 12 months from the date of delivery of such Goods.
15.2 The Company shall have no liability under the warranty in respect of:
15.2.1 any defect arising as a result of using the Goods with other equipment not approved and/or recommended by the Company;
15.2.2 any faults arising after risk in the Goods has passed to the Customer which are caused by any subsequent mechanical, chemical, electrolytic and/or other damage which is not due to a defect in the Goods by reason of defective material, design or workmanship as appropriate; and/or
15.2.3 any faults and/or defects caused by wilful damage, improper storage, improper working environment, failure to follow the Company’s instructions as set out in the Company’s care and maintenance manual DM1172 or any other instructions issued by the Company from time to time, misuse, alteration and/or repair of the Goods without the Company’s prior written approval and/or improper maintenance or negligence on the Customer’s part and/or by a third party.
15.3 The Company shall have no liability under the warranty in clause 14.1 unless a written claim is received by the Company less than 12 months after delivery of the Goods or provision of the Services, whichever is the later, in respect of which the claim is made.
15.4 In the case of Goods supplied by the Company which are not manufactured by the Company, the Company gives no warranty in respect of such Goods but will where possible transfer to the Customer the benefit of any warranty or guarantee whether express, statutory or otherwise it has received from its supplier.
15.5 Save as aforesaid the Company gives no guarantee and hereby expressly excludes all other conditions and warranties whatsoever whether statutory or otherwise
15.6 The guarantee in Clause 14.1 above will not apply if the Customer has not paid in full for the relevant Goods and/or Services.
15.7 The refund, repair, replacement and/or re-performance of the defective Goods and/or Services shall be the Customer’s sole remedy in respect of claims under this warranty.
16.1 Unless otherwise agreed in writing between the Parties, all Goods are consigned carriage paid by the cheapest route to the Customer’s designated address in the United Kingdom or, where the Goods are for export, to the free carrier within the meaning of the Incoterms 2000.
17.1 In the case of a consignment to the Customer’s designated address in the United Kingdom, the Customer must advise the Company and the carrier in writing (by way of a notice to the customer service manager and otherwise than in any receipts or other forms sent to the Company) no more than 7 days after the receipt of the advice note or invoice if the Goods covered by the advice note or invoice have not been delivered, or no more than 2 days after delivery if there is damage, pilferage or shortage in the consignment.
17.2 In the case of a consignment for export the Customer must advise the carrier and the Company in writing (by way of a notice to the customer service manager and otherwise than in any receipts or other forms sent to the Company) no less than 7 days after receipt of the Goods if there is damage, pilferage or shortage in the Goods. If the Goods covered by the advice note or invoice have not been delivered after the lapse of the normal shipping or transport time, as the case may be, the Customer must advise the Company and the carrier no more than 7 days after the expected delivery date in writing.
17.3 In the case of a consignment to the Company from a Customer in the United Kingdom in order that the Company can perform Services on the Goods, the Company will use reasonable endeavours to advise the Customer in writing within 7 days after the receipt of the consignment if there is a shortage in the consignment or within 7 days after the expected date of receipt if the consignment has not been delivered.
17.4 In the case of a consignment to the Company from a Customer outside the United Kingdom in order that the Company can perform Services on the Goods, the Company must use reasonable endeavours to advise the Customer in writing within 7 days after receipt if there is a shortage in the consignment or within 7 days after the expected date of receipt if the Goods have not been received by the Company.
17.5 Providing the notification set out in clauses 16.1 and 16.2 is received by the Company, the Company will use reasonable endeavours to provide to the Customer proof of delivery of the Goods to the carrier in sound condition.
17.6 Claims by the Customer for Goods lost or damaged in transit while the Goods were at the Company’s risk must be received in writing (by way of a notice to the customer service manager and otherwise than in receipts or other forms sent to the Company) no more than 7 days after receipt of the advice or invoice for those Goods.
17.7 The Customer must send Goods alleged to be defective to the Company at the Customer’s expense. If the Goods are considered to be defective by the Company, the Company will deliver replacement Goods at the Company’s expense.
18. Marks On Goods
18.1 The Customer undertakes and agrees that it will not remove, alter or tamper with the trade marks, logos, designs and numbers on the Goods in any way.
19.1 The Customer undertakes and agrees not to exhibit or display the Goods or any advertising matter or price relating to the Goods without the written consent of the Company.
20.1 The Customer shall indemnify and keep indemnified the Company from and against any and all actions, claims and proceedings, costs and damages (including any damages or compensation compromise or settlement of any claim) for any infringement of any Intellectual Property Rights of the Company by the Customer.
21.1 The Company’s total liability to the Customer for any one claim or series of linked claims for acts and/or omissions under this Agreement shall not exceed the price paid by the Customer for the Goods and/or Services which are the subject of any such claim.
21.2 The Company shall have no liability for defective Goods and/or Services where the defect has been caused by or contributed to by the Customer.
21.3 The Company shall have no liability to the Customer for defective Goods and/or Services, Goods not despatched or Goods damaged or lost in transit unless the event is notified to the Company within the appropriate time limit set out in this Agreement.
21.4 The Company shall have no liability for damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of defective Goods after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
21.5 Notwithstanding clause 16, the Company shall not be in breach of this Agreement nor be liable for any failure or delay in performance of its obligations under this Agreement following any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant or renew a necessary licence or consent. By way of illustration, should an application for an export licence be declined by the UK Department of International Trade, or an existing export licence be withdrawn for any reason, the Company cannot be held liable for not being able to deliver any Goods.
21.6 The Customer shall give the Company a reasonable opportunity to remedy any matter for which the Company is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so, the Company shall have no liability to the Customer in relation to such matter.
21.7 The Company shall have no liability to the Customer for any:
21.7.1 loss of profits and/or damage to goodwill;
21.7.2 pure economic and/or other similar losses;
21.7.3 special damages;
21.7.4 aggravated, punitive and/or exemplary damages;
21.7.5 consequential losses and/or indirect losses;
21.7.6 loss and/or corruption of data; and/or
21.7.7 business interruption, loss of business, loss of contracts, loss of opportunity and/or production.
21.8 The Customer shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer (including by maintaining an adequate stock of Goods).
21.9 Each of the limitations and/or exclusions in this Agreement shall be deemed to be repeated and apply as a separate provision for each of:
21.9.1 liability in contract (including fundamental breach);
21.9.2 liability in tort (including negligence);
21.9.3 liability for breach of statutory duty; and
21.9.4 liability for breach of Common Law and/or under any other legal basis;
except that Clause 20.1 above shall apply once in respect of all of the said types of liability.
21.10 Nothing in this Agreement shall exclude or limit the Company’s liability for death or personal injury due to its negligence or any liability which is due to its fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
21.11 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
22.1 No delay or omission of the Company in exercising any right shall operate to impair or be construed as a waiver of such right. No single or partial exercise or non-exercise of any right shall in any circumstances preclude any other or further exercise of such right or the exercise of any other right.
22.2 Any waiver of a breach or default of the terms of this Agreement shall not constitute a waiver of any subsequent breach or default.
23.1 Any notice under this Agreement shall be in writing and shall be deemed to have been duly given if sent or delivered to the Party concerned at the address set out in the invoice or such other address as that Party may from time to time notify in writing and shall be deemed to have been served if sent by post 48 hours after posting.
24. Entire Agreement
24.1 This Agreement contains the whole agreement between the Parties and it supersedes any prior written or oral agreement between them and is not affected by any other promise, representation, warranty, usage, custom or course of dealing. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement shall exclude liability for any fraudulent statement or act made prior to the date of this Agreement.
25.1 The invalidity, illegality or unenforceability of any of the provisions of this Agreement shall not affect the validity, legality or enforceability of the remaining provisions of this Agreement.
26.1 No purported variation of this Agreement shall take effect unless made in writing, referring to this Agreement and signed by an authorised representative of each Party.
27.1 The Company may assign any of its obligations under this Agreement and may perform its obligations under this Agreement through any member of its group in its sole discretion.
28. Third Party Rights
28.1 None of the terms of this Agreement shall be enforceable by any person who is not a party to it.
29. Governing Law
29.1 This Agreement shall be governed by the laws of England and Wales and each Party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales.