1. The following terms and conditions are the only terms and conditions upon which Dragon Information Systems will supply its Products to a Purchaser and the terms of the order acknowledgement or advice note and of these conditions shall constitute the entire agreement between Dragon Information Systems and the Purchaser. No purported variation of these conditions will be effective unless expressly accepted in writing by Dragon Information Systems under signature of a director and in no other circumstances shall a Purchaser’s standard conditions of purchase apply. Dragon Information Systems and its employees or agents shall be under no liability to a Purchaser in respect of statements representations or warranties made other than as confirmed by a letter signed by a director of Dragon Information Systems, and no employee or agent has any power to make any representations or warranties in relation to any of the Products. The giving by a Purchaser of any delivery instructions for the Products or the acceptance of any of the Products by the Purchaser, or any conduct of the Purchaser consistent therewith or confirmation of a purchase, shall constitute unqualified acceptance by a Purchaser of these conditions.
2. In these conditions the expression “the order acknowledgement” shall mean the form sent in accordance with clause 1 hereof, “advice note” shall mean the note setting out the terms of the contract to be signed by the Purchaser on delivery, and the expressions “ the Purchaser”, “the Products” and “the price” shall have the respective meanings shown in the order acknowledgement or advice note as the case may be.
3. Unless otherwise expressly stated in writing, all quotations and estimates used by Dragon Information Systems are invitations to treat. Quotations shall only be available for acceptance for a maximum period of 30 days and may be withdrawn or altered by Dragon Information Systems within such period at any time without notice. No contract shall be made by the acceptance by the Purchaser of any quotation made by Dragon Information Systems. Any quotation is made on the basis that orders will be placed by a Purchaser in the quantities therein stated. Should a Purchaser place an order for part quantities only Dragon Information Systems reserves the right to submit a revised quotation.
4. All prices shown in any price list which Dragon Information Systems may issue from time to time shall be subject to variation without notice. Dragon Information Systems shall be entitled to adjust the price before or after the contract to reflect the additional cost to Dragon Information Systems caused by any reason beyond the control of Dragon Information Systems including (without limitation) changes in exchange rates or the action of any government or authority or increase in labour, raw materials, Production, transportation and insurance costs.
5. Title to and property in the Products shall, notwithstanding delivery to the Purchaser remain in Dragon Information Systems until the Purchaser has paid all sums due to Dragon Information Systems and for the purpose of recovery of its goods Dragon Information Systems may by its servants or agents enter upon the Purchaser’s premises and repossess, remove and resell the Products and the Purchaser shall make no claim against Dragon Information Systems in respect of such entry repossession removal or resale. Until Dragon Information Systems is paid for in full for all the Products, the relationship of the Purchaser to Dragon Information Systems shall be fiduciary in respect of the Products and the Purchaser shall account to Dragon Information Systems as bare trustee for any proceeds of earlier sale or of any insurance claim representing the Products and pending payment thereof to Dragon Information Systems shall keep the same in a separate bank account. Until payment in full is made for the Products the Purchaser shall where reasonably practicable insure and keep the Products in such a way that they are clearly identified as the property of Dragon Information Systems and upon demand forthwith return the Products to Dragon Information Systems.
6. Risk in the Products shall pass immediately to the Purchaser upon delivery to the Purchaser.
7. Unless otherwise stated delivery of the goods consigned to an address within the United Kingdom shall be made when they arrive at the Purchaser’s place of business and delivery of goods consigned to an address outside the United Kingdom shall be made CIF to such an address. Whereas Dragon Information Systems shall use its best reasonable efforts to deliver on time, time shall not be the essence of the contract and Dragon Information Systems shall be entitled to deliver the Products at any time within 30 days of any stated delivery time. If delivery is delayed by strikes, lockouts fire, accidents, defective materials, delays in receipt of raw material or bought in goods or components or any other cause beyond the control of Dragon Information Systems, a reasonable extension of time for delivery shall be granted to Dragon Information Systems by the Purchaser and the Purchaser shall pay such reasonable extra charges as shall have been occasioned thereby.
8. Any claim of non-delivery of any consignment must be made in writing to the carrier and to Dragon Information Systems within 3 days of the date of Dragon Information Systems advice note or invoice or other notification of despatch relating thereto, or such shorter time limit as may be specified in any conditions of the carrier. Failure by the Purchaser to comply with this condition shall render the Purchaser solely liable for any loss arising or damage suffered through failure to inform the carriers or the insurers within the required time limits.
9. The Purchaser shall carry out a thorough inspection of the Products within a reasonable time after their delivery (and in any event within three days) and shall forthwith give written notice to Dragon Information Systems of any defects which such examination reveals. In the case of other defects the Purchaser should give written notice within three days of discovering the defects in the Products and shall afford Dragon Information Systems reasonable opportunity to inspect such defective Products. No claim will be accepted by Dragon Information Systems for defective Products later than ten days following their delivery. Subject to compliance with the foregoing obligations which shall be conditions precedent to any liability to Dragon Information Systems, Dragon Information Systems will in respect of any of the Products which it agrees are defective; either replace the same or credit the invoice value of the same and any such rectification, replacement, or credit shall be in satisfaction of all claims of the Purchaser directly or indirectly arising therefrom. The liability of Dragon Information Systems under this clause 9 shall be limited to the invoice value of the Products replaced and save as herein otherwise expressly provided Dragon Information Systems shall be under no liability whatever (including without prejudice to the foregoing, any liability in tort or for any consequential loss or damage of any kind suffered by the Purchaser or any third party). For any defect in or failure of or unsuitability for any purpose of the Products or any of them whether the same be due to any act or omission negligence or wilful default of Dragon Information Systems its servants agents subcontractors or any of them or to faulty design workmanship or materials or any other cause whatsoever. All other representations, conditions, warranties any other terms whether express or implied statutory or otherwise inconsistent with this condition is hereby expressly excluded.
10. Dragon Information Systems shall use its best reasonable efforts to perform the terms of the contract and in particular to meet all delivery dates but shall not be liable for any failure to observe or any breach of the terms hereof by reason of act of God, war, riot, terrorism, civil commotion, strike, lockout, trade dispute, fire, breakdown, interruption of transport, government action, delay in delivery by suppliers of Dragon Information Systems or any other cause whatsoever beyond it control. In the event of such circumstances continuing for more than thirty days (except where goods are in transit) then either Dragon Information Systems or the Purchaser may terminate the unperformed part of the contract by notice in writing delivered to the other within fourteen days thereafter.
11. The Purchaser shall not assign or transfer or purport to assign or transfer the contract or benefit thereof to any other person whomsoever.
12. If the Purchaser shall fail to make any payment when it becomes due or shall enter into any composition or arrangement with its creditors or (a) (being a company) shall have a receiver appointed or shall pass a resolution for its winding up petition or a petition for an administration order presented or, (b) (being an individual) shall fail to pay a debt in excess of the bankruptcy level for the purposes of the Insolvency Act 1986 or in either case there shall be any breach by the Purchaser of any of the terms or conditions hereof, Dragon Information Systems may defer or cancel any further deliveries and treat the contract as terminated but without prejudice to its right to any unpaid purchase price for the Products delivered and to damages for any loss suffered in consequence of such breach and termination.
13. All accounts shall be strictly payable within thirty days of the date of invoice unless otherwise stated, and the Purchaser shall pay all accounts in full and not exercise any rights to set off or counter-claim against invoices submitted.
14. If payment is not made within the time specified above:-
a. Interest shall accrue pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 as amended by the Late Payment of Commercial Debts Regulations 2002 at 8% above the Bank of England base rate from time to time, from the date of the invoice.
b. Compensation pursuant to the Late Payment of Commercial Debts Interest Act 1998 as amended by the Late Payment of Commercial Debts Regulations 2002 shall also fall due.
c. All other accounts and invoices submitted shall immediately become due and payable.
d. Should any legal action be required as a result of non-payment of any invoice, Dragon Information Systems shall be entitled to recover on an indemnity basis any costs and expenses incurred in collecting overdue payments, whether proceedings are issued or not. e. If the Purchaser shall fail to pay promptly any discount previously agreed by Dragon Information Systems may be withdrawn in the sole discretion of Dragon Information Systems and without incurring any liability to the Purchaser.
15. These conditions shall be construed and the right of the parties hereto shall be regulated by the law of England