Updated November 2022
1.1 In these Terms and Conditions, the following terms shall have the following meanings: 1.1.1 any term importing the singular includes the plural and vice versa;
1.1.2 a reference to a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s successors and permitted assigns; and
1.1.3 clause headings are for ease of reference only and shall not affect interpretation.
“Business Day” any day which is not a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday in England and Wales;
“Contract” means the agreement between the parties that comes into existence in accordance with clause 2.2;
“Consultancy Services” means support and assistance given by Dirickx to the Customer in respect of the Customer’s design of a solution utilising the Goods or such other services as are agreed in writing between the Customer and Dirickx;
“Customer” the entity, firm or company identified in the Order Confirmation;
“Defect” means the failure of the Goods to meet (in material respects) the applicable Specification and/or any material defects in materials and workmanship in relation to the Goods. For the avoidance of doubt, a Defect shall not include wear and tear;
“Deliverables” means all documents, products and materials developed by Dirickx or its agents, contractors and employees as part of or in relation to the Goods in any form or media, including without limitation drawings, plans, diagrams, designs, data, specifications, reports and operating instructions;
“Delivery” means completed delivery where Dirickx has made the Goods available to the Customer at the Delivery Location, or at such other location as the parties agree in writing in the Order Confirmation;
“Delivery Date” the date upon which the Goods are delivered to the Delivery Location;
“Delivery Location” means the Premises or such other location as is identified on the Order Confirmation;
“Dirickx” means Dirickx Systems Limited;
“Order Confirmation” means the form issued by Dirickx following the Customer’s offer to procure the Goods pursuant to clause 2;
“Force Majeure Event” an event or events beyond the reasonable control of a party, including but not limited to failure or delay of suppliers or contractors, acts of God, war, civil disturbance, terrorism, epidemic, pandemic, restriction of supplies, failure of machinery or power, government intervention or guidance, compliance with laws, rules or regulations, accident, malicious damage, fire, explosion, flood, adverse weather or natural disaster, strike, lockout or boycott or other industrial action involving Dirickx or its supplier’s workforce;
“Goods” means the goods to be supplied by Dirickx;
“Premises” means the Dirickx manufacturing facility at Unit4, Stourton Business Park, Queen Street, Leeds LS10 1DS;
“Quotation” means the proposal made by Dirickx to the Customer;
“Services” means site Technical Support Services or Consultancy Services as further described in the Order Confirmation;
“Site” means the location where the Goods are to be used by the Customer;
“Specification” means the specification of the Goods set out in the Quotation or other written terms issued by Dirickx;
“Technical Support Services” means on-Site support and assistance provided to the Customer.
In these Conditions:
2.1 The Quotation shall not be considered an offer but an invitation to treat. The Quotation is only valid for 30 days, unless otherwise stipulated by Dirickx. Dirickx has the right to withdraw or amend the Quotation without notice.
2.2 The Customer may accept the Quotation by issuing an order, which shall be an offer by the Customer to procure the Goods pursuant to these Terms and Conditions. Dirickx may, at its absolute discretion, accept the order and issue an Order Confirmation, at which point the binding contract between the parties shall come into existence.
2.3 These Terms and Conditions will be incorporated and form part of the Contract to the exclusion of all other terms, including any that the Customer seeks to rely upon, or which are implied by trade, custom or practice. No terms and Conditions in or attached to any purchase order or other document issued by the Customer shall have any effect.
3.1 Dirickx warrants to the Customer that the Goods shall be of satisfactory quality and the Goods shall correspond with their description and the Specification.
3.2 Dirickx shall use reasonable skill and care in the carrying out of the Services. The design of a solution incorporating the Goods on Site shall be the responsibility of the Customer. Any indicative design produced by Dirickx or design review, support or assistance undertaken as part of the Consultancy Services shall not be relied upon by the Customer and Dirickx does not provide any warranty in respect of any indicative design or Consultancy Services. Dirickx shall have no liability for any indicative design proposed as part of the Consultancy Services, including but not limited to, liability for any Defect arising from any such indicative design.
3.3 Dirickx shall have no liability in respect of the Technical Support Services carried out on Site and Dirickx does not provide any warranty in respect of the Technical Support Services.
3.4 The Customer is responsible for ensuring that the Goods are suitable for their intended and actual use and purpose, and Dirickx accepts no liability in respect thereof.
3.5 The Customer will promptly and in any event within 48 hours of discovery notify Dirickx in writing of any Defects in the Goods.
3.6 If during the period of 12 months beginning on the Delivery Date the Customer discovers a Defect, subject to notification pursuant to clause 3.3, Dirickx shall carry out such repairs or replacements as is it determines is necessary to remedy the Defect.
3.7 The Customer’s sole and exclusive remedy (to the fullest extent permitted by law) in relation to Defects will be set out in this clause 3 and these Terms and Conditions shall automatically apply to any repaired or replaced Goods supplied by Dirickx.
3.8 Dirickx shall not be liable for any Defects if in the reasonable opinion of Dirickx: 3.8.1 The notice of the Defect is received after the expiry of the notice set out in clause 3.5;
3.8.2 It arises because the Customer failed to follow the oral or written instructions given by Dirickx, including as to the maintenance of the Goods;
3.8.3 It arises as a result of the condition of the Site;
3.8.4 It arises as a result of Dirickx following any instructions, requirements, drawings or designs supplied by the Customer;
3.8.5 It arises as a result of a default of the Customer, any act or omission of any third party, or the Customer’s or any third party’s wilful damage or negligence;
3.8.6 The Customer fails to promptly inform Dirickx of any Defects and//or the Customer continues to use the affected Goods after discovery of the Defect, so as to make the Defect worse; or
3.8.7 The Customer (or a third party) alters or repairs the affected Goods.
4.1 Dirickx shall use its reasonable endeavours to deliver the Goods Ex Works (Incoterms 2020) the Premises by the mutually agreed delivery date. Unless otherwise stipulated on the Order Confirmation, the Customer shall be entirely responsible for arranging delivery of the Goods from the Premises to the Site, including without limitation their transportation, the obtaining of any necessary export or import licences and the unloading of the Goods, unless set out in the Order Confirmation in writing.
4.2 Time for delivery is not of the essence.
4.3 Dirickx shall not be liable for any delays caused by a Force Majeure Event.
4.4 The Customer shall prepare the Site and shall be responsible for all conditions at the Site, including but not limited to adverse physical on the Site, and Dirickx shall not be liable for any impact of any such conditions on the Goods.
5.1 Title to the Goods shall not pass to the Customer until payment of the Goods in full.
5.2 If possession of the Goods passes to the Customer prior to delivery, the Customer shall identify those Goods as being the property of Dirickx, keep them separate from other goods and materials and allow Dirickx to recover them if the Customer defaults on payment or the Contract is terminated.
5.3 Dirickx shall take out, and maintain for the duration of the Contract, policies of product liability insurance, public liability insurance, employer’s liability insurance to cover the liabilities that may arise under or in connection with the Contract. All such insurance policies shall be on customary and usual terms and conditions prevailing in the UK insurance market.
6.1 The price for the Goods shall be set out in the Quotation and the Order Confirmation.
6.2 Dirickx shall invoice at any time prior to the Delivery of the Goods to the Delivery Location. Where the delivery terms are Ex Works, delivery shall be complete where Dirickx makes the Goods available to the Customer at the Delivery Location.
6.3 The Customer shall pay invoiced amounts in advance of Delivery of the Goods.
6.4 If the Customer fails to make a payment due to Dirickx under the Contract by the due date, the Customer shall pay interest on the overdue sum at the rate of 5% over the Bank of England base rate from time to time from the due date until payment is made, whether before or after judgment.
All intellectual property rights in or arising in connection with the Goods and Deliverables shall be owned by Dirickx.
8.1 The parties shall not at any time disclose to any person any confidential information concerning the business, affairs, know-how, trade secrets, financial condition, assets, liabilities, operations, prospects or activities of the other party, its group of companies, except: 8.1.1 where a parties’ employees, officers, representatives, subcontractors or advisers need to know such information for the purposes of carrying out Dirickx’ obligations under the Contract; and
8.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.2 The Customer shall not use Dirickx’ confidential information for any purpose other than to perform its obligations under the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if: 9.1.1 the other party commits a material breach of the Contract and fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so; or
9.1.2 the other party is subject to a winding-up order, or a resolution for its voluntary winding-up is passed, or a receiver or receiver manager is appointed in respect of it, or possession is taken by or on behalf of any creditor of any of its property that is the subject of a charge, or a voluntary arrangement is made for a composition of its debts or a scheme of arrangement is approved under any applicable insolvency legislation in respect of it, or an administration order is made or an administrator is appointed in respect of it.
10.1 On termination of the Contract: 10.1.1 The Customer shall pay Dirickx the value of Goods properly provided or manufactured prior to the date of termination, the costs incurred or committed by Dirickx internally or to third parties arising out of the Contract up to the date of termination; and
10.1.2 Dirickx shall immediately deliver to the Customer all Goods and Deliverables which have been paid in full for but not yet provided.
10.2 Termination of the Contract shall not affect the parties’ accrued rights and remedies and any provision of the Contract that by implication is intended to survive termination of the Contract shall remain in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from a Force Majeure Event. If the period of delay or non-TERMS & CONDITIONS OF SALE November 2022
performance continues for 1 month, the party not affected may terminate the Contract by giving 10 Business Days’ notice to the affected party, in which case clause 10 shall apply.
12.1 Subject to clause 12.3, Dirickx’ liability under or in connection with this Agreement shall be limited in respect of each and every claim to the Price paid to Dirickx pursuant to the Contract for the Goods. This limit shall apply however that liability arises whether in contract, tort, negligence or arising by breach of statutory duty or otherwise.
12.2 Subject to clause 12.3, Dirickx shall not be liable (whether in contract, tort, negligence for breach of statutory duty or otherwise, and howsoever caused) for any loss of profits; loss of use, loss of income or revenue; business interruption; or consequential, indirect or special losses.
12.3 Notwithstanding any other provision of this Agreement, the liability of the Company shall not be limited in any way in respect of the following: 12.3.1 death or personal injury caused by negligence;
12.3.2 fraud or fraudulent misrepresentation;
12.3.3 any other losses which cannot be excluded or limited by applicable law.
13.1 Neither party may assign the benefit of the Contract without the other parties’ consent (not to be unreasonably withheld).
Any notice required to be given or served under the Contract shall be in writing and shall be delivered by hand or sent by first class post to the address of the relevant party stated in the Order or by email. Notices shall be deemed to have been received: (i) if delivered by hand, on the date and at the time of delivery (as evidenced by a signed delivery receipt), or if sent by first class post, at 9:00am on the second Business Day after the date of posting; (ii) if delivered by email on the date upon which the email was sent with proof of sending.
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The Contract shall be governed by English law and the English courts shall have exclusive jurisdiction with regard to all matters arising under it.