DarkSide Industries
DARKSIDE INDUSTRIES LIMITED - STANDARD TERMS & CONDITIONS
1. Interpretation
1.1 In these Conditions ‘BUYER’ means the person who accepts a quotation of the Seller for the sale of Goods or whose order for the Goods is accepted by the Seller. ‘GOODS’ means the product manufactured or services supplied and sold which the Seller is to supply in accordance with these conditions. ‘SELLER’ means DarkSide Industries Limited whose registered office is at
12c Spencer Business Centre, Factory Street, Bradford BD4 9NW. Registered No. 4650812 ‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller. ‘CONTRACT’ means the contract for the purchase and sale of the Goods.
2. Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer or any written order of the Buyer which is accepted by the Seller subject in either case to these conditions which shall govern the contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer.
2.2 No variation to these conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 The terms of this order are to govern any contract between the Buyer and the Seller and shall prevail over any terms put forward by the Seller unless the Buyer expressly agrees to them in writing. No conduct by the Seller shall be deemed to constitute acceptance of any terms put forward by the Buyer.
3. Orders and Specifications
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.2 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.3 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim or infringement of any patent, copyright design, trade mark or other industrial or intellectual property rights of any person which results from the Seller’s use of the Buyer’s specification.
3.4 The Seller reserves the right to make any changes in the specification of the Goods.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller’s published price list current at the date of acceptance of the order such prices are exclusive of value added tax and unless otherwise agreed are ex factory works England and all packing, freight, postage and insurance costs will be additional and charged to the Buyer. Where the Goods are supplied for export from the United Kingdom the Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture).
5. Terms of Payment
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the buyer for the price of the Goods on or at any time after despatch of the Goods unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods by the twentieth day of the calendar month following the calendar month in which the invoice was issued notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will only be issued on request.
5.3 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:-
5.3.1 cancel the contract or suspend any further deliveries to the Buyer
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) and
5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4% per annum above Abbey National base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6. Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller the Seller may:-
6.3.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage or
6.3.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
7.1.1 in the case of Goods to be delivered at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods the time when the Seller has tendered delivery of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payments in full of the price of the Goods and for all other sums due from the Buyer to the Seller for which payment is due on any account whatsoever.
7.3 The Buyers right to possession of the Goods shall cease if:-
7.3.1 the Buyer has not paid for the Goods in full by the expiry of any credit period allowed by this Contract
7.3.2 the Buyer being a limited company is put into liquidation or being an individual is declared bankrupt or makes any proposal to its creditors for a composition or other voluntary arrangement
7.3.3 A receiver, liquidator or administrator is appointed in respect of the Buyer’s business
7.4 On cessation of the Buyer’s right to possession of the Goods in accordance with this clause the Buyer shall at his own expense make the Goods available to the Seller and allow the Seller to repossess them.
7.5 The Buyer hereby grants the Seller its agents and employees an irrevocable Licence to enter any of its premises where the Goods are stored in order to repossess them or to inspect them at any time.
7.6 Until such time as the property in the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property.
7.7 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.8 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties and Liability
8.1 The Seller shall be under no liability whatever to the Buyer for any indirect or consequential loss and or expense (including loss of profit, goodwill or damages, costs or expenses payable by the Buyer to any third party) suffered by the Buyer arising out of a breach by the Seller of this Contract.
8.2 Subject as expressly provided in these Conditions and except where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.3 Where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.
8.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 3 days from the date of delivery. If delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.5 In the event of any breach of this Contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller shall exceed the price of the Goods.
8.6 Except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not be liable to the Buyer by reason of any representation or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer except as expressly provided in these Conditions.
8.7 The Seller shall incur no liability to the Buyer for misrepresentation by virtue of any statement made by or on behalf of the Seller prior to this Contract whether orally or in letter document or sales literature and the Buyer shall not be entitled to rescind this Contract on the grounds of any such misrepresentation.
8.8 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Seller’s reasonable control:-
8.8.1 Act of God, explosion, flood, tempest, fire or accident
8.8.2 war or threat of water sabotage, insurrection or civil disturbance or requisition
8.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the governmental parliamentary or local authority
8.8.4 import or export regulations or embargoes
8.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party)
8.8.6 difficulties in obtaining raw materials, labour, fuel parts or machinery
8.8.7 power failure or breakdown in machinery.
9. Insolvency of Buyer
9.1 This clause applies if:-
9.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or
9.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer or
9.1.3 the Buyer ceases or threatens to cease to carry on business or
9.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the buyer and notifies the Buyer accordingly.
9.2 If this clause applies then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. General
10.1 Any notice required or permitted to be given by either party to the other under these Conditions 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 pursuant to this provision to the party giving notice.
10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
10.4 The Contract shall be governed by the Laws of England.
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