DANA UK Driveshaft Ltd T/A Spicer Driveshaft UK Assembly Plant

  1. These Conditions (meaning these terms and conditions of sale) are sent or delivered to each Buyer (meaning the person, company or firm who accepts the Company’s written quotation for the sale of the Goods or whose written order for the Goods is accepted by the Company or the person named as such on the order form or invoice to which these Conditions form part of) and the Buyer agrees to be bound by them. No special condition of sale may prevail over these Conditions except with the express written approval of the Company (meaning Dana UK Driveshaft Ltd with whom the Buyer is trading) and its Affiliates (meaning any subsidiary, subsidiary undertaking or holding company of the Company and any subsidiary or subsidiary undertaking of any such holding company). No variation of the Conditions or Agreement (meaning the contract or purchase order for the sale and purchase of the Goods incorporating these Conditions) shall be valid unless it is in writing and signed by or on behalf of each of the Parties by a duly authorised representative. The Buyer acknowledges that in entering in to the Agreement they have not relied on any statement, promise or representations given by or on behalf of the Company which is not set out in the Agreement. In the event that the Buyer first receives these Conditions after the date of the Buyer’s Order (meaning the Buyer’s written purchase order to supply the Goods which shall incorporate these Conditions) but prior to delivery, the Buyer shall be deemed to have accepted the Conditions if it raises no objection within five working days or accepts delivery. Any Order or other contract must be accompanied by sufficient information, drawings and patterns as are stipulated in the Company’s quotation and all other information required enabling the Company to proceed with the Buyer’s requests.

  2. Orders may not be cancelled, suspended or varied by the Buyer without the prior written consent of a duly authorised representative of the Company. The Company reserves the right to make a cancellation charge. Any extra cost incurred by the Company owing to suspension of work on the Buyer’s instructions or by reason of lack of instruction or mistaken instructions, variations or interruptions, overtime or unusual hours for which the Company is not responsible are payable by the Buyer.

  3. The Company reserves the right to refuse to accept any cancellation and, in particular, no cancellation will be accepted in respect of orders for Goods (meaning any goods agreed in the Agreement to be bought by the Buyer from the Company including any part or parts of them) made or sourced to special requirements, not normally stocked by the Company or if the manufacture or obtaining by the Company of such Goods is in the process of being completed.

  4. The Company’s price estimates are based on economic conditions prevailing at the time and are subject to modification in accordance with the conditions prevailing at the time of manufacturing. The prices quoted for delivery of Goods within the United Kingdom is net ex-works carriage being charged extra (Incoterms 2000). All returnable containers and pallets will be chargeable and will be credited in full if returned to the Company’s supplying location carriage paid and in good condition within thirty days of despatch. All prices quoted are exclusive of VAT.

  5. Where Goods are to be supplied for export from the United Kingdom these Conditions shall apply subject to the following: a) the terms concerning payment, delivery, risk, insurance and carriage of the Goods shall be specified in the Company’s written quotation; b) the terminology of the Company’s written quotation shall be defined by reference to Incoterms 2000.

  6. Payments on credit accounts shall be strictly due following delivery of the Goods. Overdue accounts shall bear interest in accordance with the Late Payments of Commercial Debts (Interest) Act 1998 (as amended) at the official maximum interest rate in force from time to time and accruing from the date the invoice is payable in full.

  7. Any tender made by the Company is valid only as a whole and then only for a period of one calendar month, unless otherwise agreed in writing by a duly authorised representative of the Company. A tender made by the Company is not an offer and may be withdrawn without notice at any time.

  8. Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.. The Buyer shall indemnify the Company for all storage and other costs incurred as a result of the Buyer’s failure to accept delivery of the Goods if delivered at the Buyer’s premises during normal business hours or at a time previously agreed by the Buyer. Where Goods are delivered by instalments, each delivery shall be deemed to constitute a separate enforceable contract.

  9. The risk in all Goods shall pass to the Buyer upon delivery of the item concerned to the Buyer’s place of business. The Buyer shall at its own expense take out and secure the continuance of an all-risk insurance policy in respect of the Goods supplied to their total value at replacement cost. Such policy shall cover the Goods from and including the date on which they are delivered to the Buyer’s place of business. The Buyer shall procure the Company’s interest in the Goods and it shall be recorded by an endorsement on the policy specifying the Company as the loss payee. Any sums that are received under any policy may be credited against any sums owing from the Buyer to the Company.

  10. The Company will not accept liability for non-delivery of Goods unless it is notified by the Buyer in writing within five working days of the date of the invoice. The Buyer shall inspect the Goods immediately on delivery. Any shortages, breakage or defective Goods must be reported in writing to the Company within a reasonable amount of time, in any event no longer than ten working days of delivery. The Company shall be bound only to repair or replace the Goods or, at its option, to allow the Buyer credit in respect of the Goods that are the subject of the claim.

  11. All conditions and warranties whether express or implied by statute, common law or otherwise, as to the quality or fitness for purpose of the Goods or their correspondence with description are hereby expressly excluded to the fullest extent permitted by law. The Company shall not be liable for any claims for direct, indirect or consequential damage or loss, including without limitation, loss of profits, loss of turnover, loss of business or goodwill whether in contract or tort other than death or personal injury arising through any failure or defect in the Goods. The Company’s liability is strictly limited to the value of the Goods under the Agreement, the delivery, or failure to deliver the Goods, depending upon that which caused the claim or the replacement of any Goods that, after joint inspection, are acknowledged by the Company to be defective. The Company shall not be liable for:

    1. any failure or damage due to misuse, wilful damage, failure to follow the Company’s instructions, fair wear and tear or neglect,

    2. Goods operated in excess of their rated capacity,

    3. Goods operated with dirty or unsuitable fuels or lubricating oils,

    4. Goods operated under conditions detrimental to their successful running or likely to cause excessive wear or tear,

    5. Goods which have been modified or re-worked by the Buyer or any third party, or

    6. Goods not to the Company’s design, or

    7. repair of the Goods without the Company’s approval.

  12. The aggregate liability of the Company for any loss or damage (including without limitation, loss of profits, loss of turnover, loss of business or goodwill) including consequential or indirect loss or damage to the Buyer shall not in any event exceed the sum of £100,000.00 whether such liability arises in contract or in tort or otherwise. The limitation of liability referred to shall not apply in respect of death or personal injury resulting from the negligence of the Company or its servants or agents.

  13. The Goods are at the risk of the Buyer from the time of delivery. Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Company from the Buyer on any account.

  14. Until ownership of the Goods has passed to the Buyer, the Buyer shall: hold the Goods on a fiduciary basis as the Company's bailee; store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property; not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.

  15. The Buyer's right to possession of the Goods shall terminate immediately if:

    1. the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or

    2. the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or

    3. the Buyer encumbers or in any way charges any of the Goods.

  16. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.

  17. The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them at the cost of the buyer.

  18. Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.

  19. On termination of the Contract, howsoever caused, the Company's (but not the Buyer's) rights contained in this condition shall remain in effect.

  20. If physical tests on materials or running tests, in the presence of the Buyer’s representative, are required, the costs of these will be charged to the Buyer. The normal overloads and temperature rises permitted by the British Standards Institution represent the limiting overloads to be applied to the Company’s gearing and permissible temperatures. Any performance figures given by the Company are based on its experience. The Company will not however, unless otherwise previously agreed in writing between authorised representative of the parties, accept any liability if those figures are not obtained. The Buyer will assume responsibility for the capacity and performance of the Goods being sufficient and suitable for their purposes. Unless otherwise agreed all Goods will be produced to the Company’s appropriate standard specification and finish according to industry testing.

  21. Where the Company carries out work in accordance with the Buyer’s specifications any addition or alteration may be subject to an extra charge and may be made without consultation in the event that it is required to comply with new or changing legislation.

  22. Where information, instruction or guidance received from the Buyer is the direct or indirect cause of any assertion or claim by or on behalf of a third party that the Company is in breach of any right of that party, the Buyer shall indemnify and keep indemnified the Company against all demands, costs and expenses (including professional fees and costs) incurred by the Company in relation to the claim.

  23. In order to protect the Company’s intellectual property rights in connection with the Goods, other than proprietary goods, the Buyer undertakes not without the Company’s prior written consent to use any of the Goods except in connection with the Order and in particular, not to sell the Goods or any part except as the Company may direct. The Buyer shall not apply for any Letters, Patent, Registered Design or similar rights or protection in relation to the Goods unless specifically consented to by a duly authorised representative of the Company in writing.

  24. The Buyer will cooperate fully with the Company and provide all reasonable assistance in the event of a product recall. The Buyer will apply an effective batch coding system to all Goods supplied pursuant to the Order so that Goods can be readily identified in the event of a product recall. The Buyer will notify the Company immediately if they know or suspect that there is a possibility that the Goods provided by the Company may become the subject of a product recall.

  25. The Buyer shall not, without first obtaining the written consent of a duly authorised representative of the Company in any manner advertise or publish the fact that a business relationship exits. In the event the Buyer breaches this provision, the Company shall have the right to terminate the undelivered portion of any Goods covered by the Order.

  26. This relationship may be cancelled at any time by the Company at its discretion and without prejudice to any other provisions provided for in these Conditions. The following shall be treated as a breach of the terms of the Agreement and the Company shall be entitled without prejudice to other rights and remedies to treat such a breach as a repudiation of the Agreement and to determine it immediately:

    1. Any failure of the Buyer to take delivery of the Goods when required to do so or any failure of the Buyer to remedy any breach of its obligations under the Agreement or any contract with the Company within thirty days of written notice from the Company specifying the breach and the remedial action required;

    2. The levying of any distress, execution or other legal process upon any of the Buyer’s assets;

    3. Any arrangements or composition between the Buyer and its creditors or any act of bankruptcy of the Buyer or the passing of a resolution or the making of any order for the winding up of the company or the making of any administration order in respect of the company or the appointment of any liquidator, administrative receiver, judicial administrator, receiver or manager in respect of any parts of the undertaking or assets of the Buyer or any subsidiary or holding company of the Buyer;

    4. In the event of force majeure (as described more fully below), if provisions are not made in a reasonable time and manner. Any failure on the part of the Company to terminate the Agreement or to take action for enforcement of the Agreement in consequence of any breach by the Buyer shall not operate as a continuing waiver or prevent the Company from subsequently enforcing its rights in respect of any continuing breach.

  27. If in consequence of any circumstances of force majeure, including without limitation, war, civil commotion or disturbance, labour unrest, shortage of manpower, fire, flood, shortage of fuel, power or raw materials, demands, restriction or requests of Government or similar authorities, non-delivery or delay of supplies and all other circumstance of whatever kind which are beyond the Company’s reasonable control and which may affect the Company’s ability to fulfil their obligations or if completion of the Agreement, Order or other contract is prevented, impeded or delayed, the Company shall be absolved from all responsibility and liability whatsoever and reserves the right to postpone the delivery by a period beyond the time of delivery stated as appropriate for the circumstances.

  28. The Buyer hereby undertakes to keep confidential all information (written or oral) concerning the business and affairs of the Company that it shall have obtained or received as a result of the discussions leading up or the entering into or performance of the Agreement (‘the Confidential Information’) and to use the Confidential Information solely in connection with the Goods. The provisions above shall not apply to the whole or any part of the information to the extent that it is trivial or obvious, already in Buyer’s possession (other than as a result of breach of this clause), in the public domain or required by law or regulations of any competent regulatory body or disclosed to a court, arbitrator or administrative tribunal in the course of proceedings before it to which the Company or the Buyer is a party and where such disclosure is required. The Buyer agrees that the obligations contained in this clause shall survive termination of the Agreement.

  29. The Buyer, will not without the prior written consent of the Company, assign the Agreement or any part of it. Such consent may be given by the Company on such terms as to guarantee, indemnity or otherwise as the Company thinks fit. The Company may assign the Agreement or any part of it to any person, firm or company.

  30. The uniform law on international sales shall not apply to any contract or any order pursuant to these Conditions. Any dispute arising out of or in connection with the Agreement shall initially be negotiated between the parties in the event that a solution cannot be achieved within 60 days the dispute may be referred to the decision of a single arbitrator under the rules of the International Centre of Dispute Resolution. The decision of the Arbitrator shall be final and binding. The parties agree to exclude any right of application or appeal to the English Courts concerning any question of law arising in the course of arbitration. Every Agreement to which these Conditions apply shall be construed and take affect in accordance with the Laws of England and the parties shall accept the non-exclusive jurisdiction of the English Courts.

  31. The Company shall be entitled but not obliged at any time without notice to set off any liability of the Buyer to the Company against any liability of the Company to the Buyer (in either case howsoever arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency of its denomination) and may for such purpose convert or exchange any currency. Any exercise by the Company of its rights under this clause shall be without prejudice to any other rights or remedies available to the Company under the Agreement or otherwise.

  32. If any provision of these Conditions and/or the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of these Conditions and/or the Agreement, and the validity and enforceability of the other provisions of these Conditions and/or the Agreement shall not be affected.