TERMS OF BUSINESS
1.1 Doriflon Limited (company no. 1365572) (“the seller”) reserves the right to make changes to the specification of any products in order to conform with any applicable legal requirements or which do not materially affect their quality.
1.2 The Seller may correct any clerical errors made in the order form.
1.3 The Customer may not cancel the contract without the prior written consent of the Seller which if given shall be deemed to be on the express condition that the customer shall keep the Seller fully and effectively indemnified against all loss, damage, claims or actions sustained or incurred by the Seller directly or indirectly as a result of such cancellation.
2 The Price
2.1 The price for the products is ex works and the Seller will also invoice the customer for its delivery charge.
2.2 The Seller’s invoice for the products and the delivery charge shall be paid by the customer within the period specified in the order form or as stated on the invoice.
3.1 The Seller shall deliver the products to the works of the customer specified
on the order form. The date given for delivery in that form is however an estimate
only and time shall not be of the essence. In no circumstances shall the Seller be
liable to compensate the customer in damages or otherwise for non-
3.2 Should the Seller be prevented from or hindered in delivering any products by
reason of war, threat of war, riot, explosion, fire, flood, accident, strike, lock-
3.2.1 the time for delivery shall be extended by a period equal to that during which the cause preventing or hindering the same exists; and
3.2.2 the Seller shall deliver and the customer shall take and pay for such products as the Seller shall be able to deliver in accordance with the contract.
3.3 If delivery of any products has not been made within 28 days of the date given for delivery in the order form the customer may by notice therefore cancel the contract in respect of those products but the Seller shall in no circumstances be liable to compensate the customer in damages or otherwise for non or late delivery of the products or any part of them for whatever reason.
4 Risk and Title
4.1 Risk of loss of or damage to the products shall pass to the customer on delivery of if the customer fails to take delivery of the products on their being tendered for delivery.
4.2 Until payment in full has been received by the Seller for the price of the products and the delivery charge [and for other products supplied by the Seller to the Customer under and other contract (and in ascertaining whether the Seller has received payment the Seller shall be entitled to appropriate any payments received towards payment for other products supplied by the Seller under and other contract)]:
4.2.1 the Seller shall remain the sole and absolute legal and beneficial owner of the products;
4.2.2 the customer shall hold the products in law and in equity as agent and bailee for the Seller;
4.2.3 the products shall so far as practicable be kept separate from other products at the relevant works so as to be readily identifiable as products of the Seller (and the customer hereby licences the Seller and its employees and agents to enter such works for the purpose of satisfying itself that this is the case);
4.2.4 demand for or recovery of such products by the Seller shall not discharge either the customer’s liability to pay the price for the products and the delivery charge or the Seller’s right to sue for the same;
4.2.5 (without prejudice to any other right or remedy of the Seller) the customer shall on demand immediately return the products and all other products supplied by the Seller to the customer under any other contract between then in each case where the property thereto has not passed to the customer and the customer authorises the Seller and its employees and agents to recover such products and to enter the works of the customer for that purpose and to remove such products.
4.3 Nothing in clause 4.2 above shall give the customer the right to return products or to be released from any of its obligations under the contract and the Seller may bring an action for the price for the products and the delivery charge notwithstanding that property in any products has not passed to the Customer.
5 Inspection of Products
5.1 The customer shall inspect the products on taking delivery of them and may within seven days from their delivery give notice and provide evidence satisfactory to the Seller of any matter or thing by reason whereof the customer alleges that the products are not in accordance with the contract. In the case of shortages of delivery the Seller may at its absolute discretion make a further delivery to the customer to make up for such shortages or give the customer a credit note in respect thereof.
5.2 If the customer does not give such notice the products shall be conclusively
presumed to be free from any defect which would be apparent on reasonable examination.
If the customer establishes to the Seller’s satisfaction that the products are not
in accordance with the contract the customer’s sole remedy in respect of such non-
6.1 Subject to clauses 6.4 and 6.5 below the Seller warrants to the customer that as at the time of their delivery to the customer the products are of satisfactory quantity (within the meaning of the Sale of Goods Act 1979) and comply with the drawing or specification referred to in the order form.
6.2 The customer shall give notice to the Seller as soon as reasonably possible after becoming aware of a breach of clause 6.1 above.
6.3 The Seller shall remedy any breach of clause 6.1 above as its absolute discretion by either the replacement or repair of the defective product [or a credit equal to the price of that product] and (subject to doing so) the Seller shall have no further liability to the customer in relation to the breach. For the avoidance of doubt defective products so replaced [or the subject of such a credit] shall remain or become the property of the Seller.
6.4 SUBJECT TO THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, REPRESENTATIONS, TERMS AND UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE WHETHER AS TO FITNESS FOR PURPOSE OR THERWISE HOWSOEVER IN RESPECT OF THE PRODUCTS ARE HEREBY EXCLUDED
6.5 In addition the Seller shall not have any liability to the customer if the breach of clause 6.1 is the result of any defect in materials, design or workmanship in relation to free issue materials supplied for the purposes of the contract by the customer to the Seller.
6.6 The Seller shall be afforded reasonable opportunity and facilities to investigate any claims made under this Clause 6 and the customer shall if so required in writing by the Seller promptly return any products the subject of any claim securely packed and carriage paid to the Seller for examination.
6.7 Under no circumstances shall the Customer be entitled to reject any products on the basis of any defect or failure which is so slight that it would be unreasonable for it to reject them.
7 Limitation of Liability
7.1 The following provisions set out the Seller’s entire liability (including liability
for the acts and omissions of its employees, agents and sub-
7.1.2 any breach of its warranties or other obligations under the contract; or
7.1.3 any representation (unless fraudulent), statement, act or omission (including without limitation negligence) of the Seller arising under or in connection with the contract
(Together an “Event of Default”) AND THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE FOLLOWING PROVISION OF THIS CLAUSE 7
7.2 The Seller’s liability to the customer for death or personal injury resulting
from its own or that of its employees’, agents or sub-
7.3 Subject to clause 7.2 above, the Seller’s entire liability in respect of any other Event of Default shall be limited to the price of the products which are the subject of the Event of Default.
7.4 Subject to clause 7.2 above, the Seller shall not be liable to the customer in respect of any Event of Default for loss of profit, goodwill or any type of special, indirect and consequential loss (including without limitation loss or damage suffered by the customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Seller had been advised of the possibility of the customer incurring the same.
7.5 If a number of Events of Default gives rise substantially to the same loss then they shall be regarded as giving rise to only one claim under the contract.
7.6 Nothing in this clause 7 shall confer any right or remedy on the customer to which it would not otherwise be legally entitled.
8.1 The customer shall keep the Seller fully and effectively indemnified (and in
relation thereto shall secure the position of the Seller in such manner as the Seller
many from time to time require) against all actions, suits, claims, demands, damages,
loss, charges and expenses arising directly or indirectly from the condition or use
of the products in the event and to the extent that the same shall have been occasioned
partly or wholly by the negligence of the customer or its employees, agents or sub-
9 Intellectual Property Rights
9.1 The customer acknowledges that the Seller has manufactured the products according to drawings or specifications supplied by the customer to the Seller. The customer therefore represents and warranties to the Seller that the products as so manufactured do not infringe the intellectual property rights of any person or other legal entity so as to prevent or restrict sale or use of the products in any part of the world.
10.1 These terms and the terms set out in the order form constitute the entire agreement between the Seller and the customer relating to the sale and purchase of the products and supersede and extinguish all prior agreements, understandings and representation (excluding fraudulent representations).
10.2 Any sum payable by the customer under the contract which is not paid on the due date shall bear interest (as well before as after any judgement therefore) at the rate of two per cent per annum above base rate from time to time of Barclays Bank PLC for the period from and excluding such date up to and including the date of payment in full.
10.3 The customer may not assign (either at law or in equity) any right or benefit under the contract.
10.4 There shall be no waiver of any term of the contract by the Seller unless such waiver is evidenced in writing and signed by the Seller.
10.5 No variation of the contract shall be effective unless made in writing and signed by the parties.
10.6 If at any time one or more of the provisions of the contract is or becomes invalid, illegal or unenforceable in any respect under any law the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired thereby.
10.7 Save as required by law all payments to be made by the customer under the contract
shall be made in full without any set-
10.8 Any notice or other communication to be given under the contract shall be in writing and either delivered personally or sent recorded delivery post (airmail if overseas) to the address of the party set out in the order form or any other address for services previously notified to the other party.
10.9 The contract shall be governed by and construed to accordance with English law
to whose non-
10.10 Notwithstanding any other provision of the contract, nothing in these terms shall or shall be deemed either to:
10.10.1 affect the statutory rights of a consumer pursuant to a consumer transaction (all as defined in the Consumer Transactions (Restrictions on Statements) Order 1976 as amended); or
10.10.2 exclude or restrict any liability which the Seller may by virtue of the Consumer Protection Act 1987