1.1 In these Terms:
1.2 "Contract" means the contract for the sale and purchase of the Goods;
1.3 "Delivery Address" means the address stated on the Order;
1.4 "DGM" means Digimate Limited whose details are as stated in the Order
1.5 "Goods" means the goods (including any instalment of the goods or any part of them) described in the Order;
1.6 "Order" means DGM's purchase order to which these Terms are annexed;
1.7 "Price" means the price of the Goods;
1.8 "Seller" means the person so described in the Order;
1.9 "Specification" includes any plans, drawings, data or other information relating to the Goods;
1.10 "Terms" means the standard terms of purchase set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between DGM and the Seller;
1.11 "Writing" any similar expression, includes facsimile transmission and comparable means of communication, but not electronic mail.
1.12 Any reference in these Terms to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.13 The headings in these Terms are for convenience only and shall not affect their interpretation.
2 Basis of purchase
2.1 The Order constitutes an offer by Digimate to purchase the Goods subject to these Terms.
2.2 These Terms shall apply to the Contract to the exclusion of any other terms on which any quotation has been given to DGM or subject to which the Order is accepted or purported to be accepted by the Seller.
2.3 The Order will lapse unless unconditionally accepted by the Seller in writing within seven days of its date.
2.4 No variation to the Order or these Terms shall be binding unless agreed in Writing between the authorised representatives of Digimate and the Seller.
2.5 A contract for the purchase of the Goods will be established on these Terms when:
2.5.1 these Terms are signed by Digimate and the Seller; or
2.5.2 (if earlier) by the Seller delivering the Goods to DGM.
3.1 The quantity, quality and description of the Goods and the Services shall, subject as provided in these Terms, be as specified in the Order and/ or in any applicable Specification supplied by Digimate to the Seller or agreed in Writing by Digimate.
3.2 Any Specification supplied by DGM to the Seller, or specifically produced by the Seller for DGM, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of DGM, and the Seller assigns with full title guarantee to DGM all such copyright, design rights and other intellectual property for no further consideration, subject only to the payment of the Price. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.
3.3 The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods.
3.4 The Seller shall not unreasonably refuse any request by DGM to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and the Seller shall provide DGM with all facilities reasonably required for inspection and testing.
3.5 If as a result of inspection or testing DGM is not satisfied that the Goods will comply in all respects with the Contract, and DGM so informs the Seller within seven days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance.
3.6 The Goods shall be marked in accordance with DGM¡¦s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
4 Price of the goods and services
4.1 The Price of the Goods shall be as stated in the Order and, unless otherwise so stated, shall be:
4.11 exclusive of any applicable value-added tax (which shall be payable by
DGM subject to receipt of a VAT invoice); and
4.12 inclusive of all charges for packaging, packing, shipping, carriage,
insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax.
4.2 No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of DGM in Writing.
4.3 DGM shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms of sale.
5 Terms of payment
5.1 The Seller may invoice DGM on or at any time after delivery of the Goods, as the case may be, and each invoice shall quote the number of the Order.
5.2 Unless otherwise stated in the Order, DGM shall pay the Price of the Goods within 30 days after the end of the month of receipt by DGM of a proper invoice or, if later, after acceptance of the Goods or Services in question by DGM.
5.3 DGM may set off against the Price any sums owed to DGM by the Seller.
6.1 The Goods shall be delivered to, and the Services shall be performed at, the Delivery Address on the date or within the period stated in the Order, in either case during DGM¡¦s usual business hours.
6.2 Where the date of delivery of the Goods or of performance of the Services is to be specified after the placing of the Order, the Seller shall give DGM reasonable notice of the specified date.
6.3 The time of delivery of the Goods and of performance of the Services is of the essence of the Contract.
6.4 A packing note quoting the Order Number must accompany each delivery or consignment of the Goods and must be displayed prominently.
6.5 If the Goods are to be delivered by instalments, the Contract will be treated as a single contract and not severable.
6.6 DGM may reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods until DGM has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.
6.7 The Seller shall supply DGM in good time with any instructions or other information required to enable DGM to accept delivery of the Goods.
6.8 DGM shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by DGM.
6.9 If the Goods are not delivered on the due date then, without limiting any other remedy, DGM shall be entitled to terminate the Order for the Goods by giving written notice to the Seller without any liability to the Seller whatsoever or howsoever arising and any deposit paid by DGM to the Seller shall become immediately due and refundable to DGM by the Seller.
7 Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to DGM on delivery to DGM in accordance with the Contract.
7.2 The property in the Goods shall pass to DGM on delivery, unless payment for the Goods is made prior to delivery, when it shall pass to DGM once payment has been made and the Goods have been appropriated to the Contract.
8 Warranties and liability
8.1 The Seller warrants to DGM that the Goods:
8.1.1 will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Seller or made known to the Seller in Writing at the time the Order is placed;
8.1.2 will be free from defects in design, material and workmanship;
8.1.3 will correspond with any relevant Specification or sample; and
8.1.4 will comply with all statutory requirements and regulations relating to the sale of the Goods.
8.2 Without limiting any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract, then DGM shall be entitled:
8.2.1 to require the Seller to repair the Goods or to supply replacement Goods in accordance with the Contract within seven days of DGM giving notice to the Seller; or
8.2.2 at DGM¡¦s sole option, and whether or not DGM has previously required the Seller to repair the Goods or to supply any replacement Goods or Services, to treat the Contract as discharged by the Seller¡¦s breach and require the repayment of any part of the Price which has been paid.
8.3 The Seller shall indemnify DGM in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by DGM as a result of or in connection with:
8.3.1 breach of any warranty given by the Seller in relation to the Goods:
8.3.2 any claim that the Goods infringe, or their importation, use or resale, infringes, the patent, copyright, design right, trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by DGM;
8.3.3 any liability under the Consumer Protection Act 1987 in respect of the Goods;
8.3.4 any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering and installing the Goods; and
8.4 Neither the Seller nor DGM shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods if the delay or failure is beyond that party¡¦s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond either party¡¦s reasonable control:
8.4.1 Act of God, explosion, flood, tempest, fire or accident;
8.4.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.4.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.4.4 import or export regulations or embargoes;
8.4.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees or either the Seller or DGM or of a third party);
8.4.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.4.7 power failure or breakdown in machinery.
9.1 DGM may cancel the Order in respect of all or part only of the Goods by giving notice to the Seller at any time prior to delivery or performance, in which event DGM¡¦s sole liability shall be to pay to the Seller the Price for the Goods in respect of which DGM has exercised its right of cancellation, less the Seller¡¦s net saving of cost arising from cancellation.
9.2 DGM may terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:
9.2.1 the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
9.2.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
9.2.3 the Seller ceases, or threatens to cease, to carry on business; or
9.2.4 DGM reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
10.1 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract.
10.2 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving the notice.
10.3 No waiver by DGM of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
10.5 The Contract shall be governed by the laws of England, and the Seller agrees to submit to the non-exclusive jurisdiction of the English courts.