Order Acknowledgment Terms and Conditions.
1.1 In these Conditions, the following definitions apply:
Authorised Distributor: any person whom the Supplier may from time to time designate as an authorised distributor of goods sold by the Supplier.
Business Day: a day (other than a Saturday, Sunday or public holiday)
when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended
from time to time in accordance with clause 13.6.
Contract: the contract between the Supplier and the Purchaser for the
sale and purchase of the Goods in accordance with these Conditions.
Country of Authorised Distribution: any country which is the principal place of business of an Authorised Distributor.
Delivery Details: the details relating to the transportation and
delivery of the Goods, including approximate time and date of delivery,
in accordance with clause 3 and as set out in clause the Supplier's
quotation at Schedule 1.
Force Majeure Event: has the meaning given in clause 11.
Goods: the goods (or any part of them) set out in the Order.
Order: the Purchaser's order for the Goods, as set out in the Supplier's
written acceptance of the Purchaser's offer to purchase the Goods in
accordance with clause 2.2 of the Contract.
Purchaser: the person or company who purchases the Goods from the
Software: (Or "computer program", "program", "code") The instructions
executed by a computer, as opposed to the physical device on which they
run. (The hardware)
Specification: any specification for the Goods, including any related
plans and drawings, supplied to the Supplier by the Purchaser, or
produced by the Supplier and agreed in writing by the Purchaser, as set
out at Schedule 2.
Supplier: Dyna Pro Dynamometers Limited (registered in England and Wales
with company number 06831033).
1.2 In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives,
successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to
such statute or provision as amended or re-enacted. A reference to a
statute or statutory provision includes any subordinate legislation made
under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular
or any similar expression shall be construed as illustrative and shall
not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other
terms that the Purchaser seeks to impose or incorporate, or which are
implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Purchaser to purchase the
Goods in accordance with these Conditions. The Purchaser shall ensure
that the terms of the Order and any relevant Specification are complete
2.3 The Order shall only be deemed to be accepted when the Supplier
issues a written acceptance of the Order, at which point the Contract
shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties.
The Purchaser acknowledges that it has not relied on any statement,
promise or representation made or given by or on behalf of the Supplier
which is not set out in the Contract. Any samples, drawings, descriptive
matter, or advertising issued by the Supplier and any descriptions or
illustrations contained in the Supplier's catalogues, brochures or
website are issued or published for the sole purpose of giving an
approximate idea of the Goods described in them. They shall not form
part of the Contract or any other contract between the Supplier and the
Purchaser for the sale of the Goods.
2.5 A quotation for the Goods given by the Supplier shall not constitute
an offer. A quotation shall only be valid for a period of 20 Business
Days from its date of issue.
3. TRANSPORTATION AND DELIVERY
3.1 The Supplier shall ensure that:
(a) the Goods are accompanied by a delivery note which shows the date of
the Order, all relevant Purchaser and Supplier reference numbers, the
type and quantity of the Goods (including the code number of the Goods,
where applicable), special storage instructions (if any) and, if the
Order is being delivered by instalments, the outstanding balance of
Goods remaining to be delivered; and
(b) if the Supplier requires the Purchaser to return any packaging
materials to the Supplier, that fact is clearly stated on the delivery
note. The Purchaser shall make any such packaging materials available
for collection at such times as the Supplier shall reasonably request.
Returns of packaging materials shall be at the Supplier's expense.
3.2 In the event that the parties have agreed in writing that the
Purchaser shall collect the Goods:
(a) the Purchaser shall collect the Goods from the Supplier's premises
at Unit 18, Sherrington Way, Lister Road Industrial Estate, Basingstoke,
Hampshire, United Kingdom, RG22 4DQ or such other location as may be
agreed between the parties prior to delivery (Delivery Location) within
14 Business Days of the Supplier notifying the Purchaser that the Goods
are ready; and
(b) the Supplier shall not be liable for any loss or damage suffered by
the Purchaser as a result of the Purchaser's use of an inappropriate
vehicle type for transportation of the Goods, poorly secured or
unsecured loads, or axle weight infringements.
3.3 In the event that the parties have agreed in writing that the
Supplier shall deliver the Goods, the Seller shall deliver the Goods in
accordance with the Delivery Details as set out in the Supplier's
quotation at Schedule 1
3.4 The Delivery Details are approximate only, and the time of delivery
is not of the essence unless specifically agreed between the parties in
writing prior to delivery of the Goods. In the absence of such agreement
the Supplier shall not be liable for any loss, including consequential
loss, suffered by the Purchaser as a result of any failure by the
Supplier to deliver the Goods on or within the approximate delivery
times and/or dates stated in the Delivery Details.
3.5 The Supplier shall not be liable for any loss suffered by the
Purchaser as a result of a delay in delivery of the Goods that is caused
by a Force Majeure event or the Purchaser's failure to provide the
Supplier with adequate delivery instructions or any other instructions
that are relevant to the supply of the Goods.
3.6 If the Purchaser fails to take delivery of the Goods within 14
Business Days of the Supplier notifying the Purchaser that the Goods are
ready for delivery, then, except where such failure or delay is caused
by a Force Majeure Event or the Supplier's failure to comply with its
obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00
am on the fourteenth Business Day following the day on which the
Supplier notified the Purchaser that the Goods were ready for delivery;
(b) the Supplier shall store the Goods until delivery takes place, and
charge the Purchaser for all storage costs and expenses (including
insurance) at a rate of 0.5% of the total Order value per week.
3.7 If the Purchaser fails to collect or take delivery of the goods
within 30 Business Days following the Supplier's written notification
that the Goods are ready for collection or delivery, the Supplier may
resell or otherwise dispose of part or all of the Goods and, after
deducting reasonable storage and selling costs, account to the Purchaser
for any excess over the price of the Goods or charge the Purchaser for
any shortfall below the price of the Goods.
3.8 The Supplier may deliver the Goods by instalments, which shall be
invoiced and paid for separately. Each instalment shall constitute a
separate Contract. Any delay in delivery or defect in an instalment
shall not entitle the Purchaser to cancel any other instalment.
4. NOTICE OF LOSS OR DAMAGE
4.1 The Purchaser shall unpack and inspect the Goods immediately upon
receipt and shall notify the Supplier in writing of any loss or damage
to the Goods recorded upon such inspection within 5 Business Days' of
receipt of the Goods. The Purchaser shall provide the Supplier with
photographs and proper documentation of any such damage or loss.
4.2 The Supplier shall only be liable for loss or damage arising from
the use of faulty material or poor workmanship in the production of the
Goods. The Supplier's liability for such loss or damage is limited to
crediting or replacing the defective Goods, and no such liability shall
arise in the event that the Purchaser fails to notify the Supplier
thereof in accordance with clause 4.1.
5.1 The Supplier warrants that on delivery, and for a period of 24
calendar months, unless otherwise specified in writing, or as set out at
Schedule 4, from the date of delivery (Defects Warranty Period), the
(a) conform in all material respects with their description and any
applicable Specification; and
(b) be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3 and 5.4, if:
(a) the Purchaser gives notice in writing to the Supplier during the
warranty period within a reasonable time of discovery that some or all
of the Goods do not comply with the warranty set out in clause 5.1; and
(b) the Supplier is given a reasonable opportunity of examining such
(c) the Purchaser (if asked to do so by the Supplier) returns such Goods
to the Supplier's place of business at the Purchaser's cost,
the Supplier shall, at its option, repair or replace the defective
Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for Goods' failure to comply with
the warranty set out in clause 5.1 if:
(a) the Purchaser makes any further use of such Goods after giving
notice in accordance with clause 5.2; or
(b) the defect arises because the Purchaser failed to follow the
Supplier's oral or written instructions as to the storage,
commissioning, installation, use and maintenance of the Goods or good
trade practice; or
(c) the defect arises as a result of the Supplier following any drawing,
design or specification supplied by the Purchaser; or
(d) the Purchaser alters or repairs such Goods without the written
consent of the Supplier; or
(e) the defect arises as a result of fair wear and tear, wilful damage,
negligence, or abnormal storage or working conditions.
(f) replacement of service items, as set out at Schedule 3.
(g) to items which become defective through fair wear and tear.
5.4 Where the Goods are not situated in a Country of Authorised Distribution, the Purchaser shall bear all
transportation and delivery costs incurred by the Supplier when the Supplier
performs the obligations under clause 5.2.
5.5 Except as provided in this clause 5, the Supplier shall have no
liability to the Purchaser in respect of the Goods' failure to comply
with the warranty set out in clause 5.1.
5.6 Except as set out in these Conditions, all warranties, conditions
and other terms implied by statute or common law are, to the fullest
extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Goods
supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Purchaser on completion of
6.2 Title to the Goods shall not pass to the Purchaser until the
Supplier has received payment in full in cleared funds for:
(a) the Goods; and
(b) any other goods or services that the Supplier has supplied to the
Purchaser in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Purchaser, the Purchaser
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the
Purchaser so that they remain readily identifiable as the Supplier's
(c) not remove, deface or obscure any identifying mark or packaging on
or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured
against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the
events listed in clause 9.2; and
(f) give the Supplier such information relating to the Goods as the
Supplier may require from time to time,
but the Purchaser may resell or use the Goods in the ordinary course of
6.4 If before title to the Goods passes to the Purchaser the Purchaser
becomes subject to any of the events listed in clause 9.2, or the
Supplier reasonably believes that any such event is about to happen and
notifies the Purchaser accordingly, then, provided that the Goods have
not been resold, or irrevocably incorporated into another product, and
without limiting any other right or remedy the Supplier may have, the
Supplier may at any time require the Purchaser to deliver up the Goods
and, if the Purchaser fails to do so promptly, enter any premises of the
Purchaser or of any third party where the Goods are stored in order to
7. PRICE, DEPOSIT AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or,
if no price is quoted, the price set out in the Supplier's published
price list in force as at the date of collection or delivery.
7.2 The Supplier may, by giving written notice to the Purchaser at any
time before delivery of the Goods, or any part thereof, increase the
price of the Goods to reflect any increase in the cost of the Goods that
is due to:
(a) any factor beyond the Supplier's control (including foreign exchange
fluctuations, increases in taxes and duties, and increases in labour,
materials and other manufacturing costs);
(b) any request by the Purchaser to change the delivery date(s),
quantities or types of Goods ordered, or the Specification;
(c) any delay caused by any instructions of the Purchaser or failure of
the Purchaser to give the Supplier adequate or accurate information or
7.3 The price of the Goods is exclusive of the costs and charges of
packaging, tooling, insurance and transport of the Goods, which shall be
paid by the Purchaser when it pays for the Goods.
7.4 Any modifications of or additions to the Specification carried out
by the Supplier at the Purchaser's request at any time following the
Supplier's written acceptance of the Purchaser's offer to buy the Goods
shall be charged on an hourly rate basis.
7.5 The price of the Goods is exclusive of amounts in respect of value
added tax (VAT). The Purchaser shall, on receipt of a valid VAT invoice
from the Supplier, pay to the Supplier such additional amounts in
respect of VAT as are chargeable on the supply of the Goods.
7.6 The Supplier shall invoice the Purchaser for the Goods prior to
production of the Goods. The Supplier reserves the right, at any time,
to amend any invoice issued to the Purchaser in order to correct
accidental errors, amend omissions or include additional charges that
may have arisen from the date of issue of the invoice.
7.7 The Purchaser shall pay a non-refundable deposit of 50% of the
invoice value to the Supplier in cleared funds within 5 Business Days of
receipt of the invoice.
7.8 The Supplier shall aim to commence production of the Goods within 30
Business Days of receipt of the deposit monies from the Purchaser.
7.9 The Purchaser shall pay the remaining 50% of the invoice in full and
in cleared funds within 20 Business Days of payment of the deposit
7.10 In the event that the Purchaser has opted for the Goods to be
produced on a fast-track basis, the Purchaser shall pay the remaining
50% of the invoice in full and in cleared funds a minimum of 5 Business
Days prior to the date of dispatch of the Goods, as set out in the
7.11 Where the Purchaser holds a trade account with the Supplier, the
Purchaser shall make payment of the account balance on the 30th day of
each calendar month. If the Purchaser fails to make any payment due to
the Supplier under this clause 7.11, then the Purchaser shall pay
interest on the overdue amount at the rate of 4% per annum above the
Bank of England's base lending rate from time to time. Such interest
shall accrue on a daily basis from the due date until the date of actual
payment of the overdue amount, whether before or after judgment. The
Purchaser shall pay the interest together with the overdue amount.
7.12 Time of payment is of the essence.
7.13 The Supplier shall only deliver or make the Goods available for
collection following receipt of payment of the invoice in full.
7.14 Credit card payments with a total value greater than £1,500 shall
be subject to a 2.8% surcharge.
7.15 Failure by the Purchaser to make any payment due to the Supplier
under the Contract by the due date for payment, in accordance with
clauses 7.9, 7.10 and 7.11, may result in a delay in the production and
subsequent delivery or availability of the Goods for collection, for
which the Supplier shall not be held liable.
7.16 The Purchaser shall pay all amounts due under the Contract in full
without any deduction or withholding except as required by law and the
Purchaser shall not be entitled to assert any credit, set-off or
counterclaim against the Supplier in order to justify withholding
payment of any such amount in whole or in part. The Supplier may at any
time, without limiting any other rights or remedies it may have, set off
any amount owing to it by the Purchaser against any amount payable by
the Supplier to the Purchaser.
8.1 The Supplier shall supply the Software on a "free for life" basis to
the original Purchaser only.
8.2 If the Goods have been sold by the original Purchaser to a third
party, the Supplier shall, at its option, will supply the Software on an
annual fee basis.
8.3 The Software shall expire on an annual basis, following a 60 day
countdown to the expiry date clearly displayed on the Dynamometer
8.4 The Supplier shall make the updated Software available to the
Purchaser on request at any time during the 60 day expiry countdown
period or at any time thereafter.
8.5 In the event that the Purchaser has failed to make payment for the
Goods in accordance with the terms of clause 7 above, the Supplier shall
not make the updated Software available until such a time as the
Purchaser has paid all amounts due under the Contract in full within any
deductions or withholding except as required by law.
9. PURCHASER'S INSOLVENCY OR INCAPACITY
9.1 If the Purchaser becomes subject to any of the events listed in
clause 9.2, or the Supplier reasonably believes that the Purchaser is
about to become subject to any of them and notifies the Purchaser
accordingly, then, without limiting any other right or remedy available
to the Supplier, the Supplier may cancel or suspend all further
deliveries under the Contract or under any other contract between the
Purchaser and the Supplier without incurring any liability to the
Purchaser, and all outstanding sums in respect of Goods delivered to the
Purchaser shall become immediately due.
9.2 For the purposes of clause 9.1, the relevant events are:
(a) the Purchaser suspends, or threatens to suspend, payment of its
debts or is unable to pay its debts as they fall due or admits inability
to pay its debts or (being a company) is deemed unable to pay its debts
within the meaning of section 123 of the Insolvency Act 1986, or (being
an individual) is deemed either unable to pay its debts or as having no
reasonable prospect of so doing, in either case, within the meaning of
section 268 of the Insolvency Act 1986, or (being a partnership) has any
partner to whom any of the foregoing apply; or
(b) the Purchaser commences negotiations with all or any class of its
creditors with a view to rescheduling any of its debts, or makes a
proposal for or enters into any compromise or arrangement with its
creditors [other than (where the Purchaser is a company) these events
take place for the sole purpose of a scheme for a solvent amalgamation
of the Purchaser with one or more other companies or the solvent
reconstruction of the Purchaser]; or
(c) (being an individual) the Purchaser is the subject of a bankruptcy
petition or order; or
(d) a creditor or encumbrancer of the Purchaser attaches or takes
possession of, or a distress, execution, sequestration or other such
process is levied or enforced on or sued against, the whole or any part
of its assets and such attachment or process is not discharged within 14
(e) (being a company) an application is made to court, or an order is
made, for the appointment of an administrator or if a notice of
intention to appoint an administrator is given or if an administrator is
appointed over the Purchaser; or
(f) (being a company) a floating charge holder over the Purchaser's
assets has become entitled to appoint or has appointed an administrative
(g) a person becomes entitled to appoint a receiver over the Purchaser's
assets or a receiver is appointed over the Purchaser's assets; or
(h) any event occurs, or proceeding is taken, with respect to the
Purchaser in any jurisdiction to which it is subject that has an effect
equivalent or similar to any of the events mentioned in clause 9.2(a)to
clause 9.2(g) (inclusive); or
(i) the Purchaser suspends, threatens to suspends, ceases or threatens
to cease to carry on all or substantially the whole of its business; or
(j) the Purchaser's financial position deteriorates to such an extent
that in the Supplier's opinion the Purchaser's capability adequately to
fulfil its obligations under the Contract has been placed in jeopardy.
(k) (being an individual) the Purchaser dies or, by reason of illness or
incapacity (whether mental or physical), is incapable of managing his or
her own affairs or becomes a patient under any mental health
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Supplier's
(a) death or personal injury caused by its negligence, or the negligence
of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act
(d) defective products under the Consumer Protection Act 1987.
10.2 Subject to clause 10.1:
(a) the Supplier shall not be liable to the Purchaser, whether in
contract, tort (including negligence), breach of statutory duty, or
otherwise, for any loss of profit or indirect or consequential loss
arising under or in connection with the Contract (including a deliberate
breach of the Contract by the Supplier, its employees, agents or
(b) the Supplier's total liability to the Purchaser in respect of all
other losses arising under or in connection with the Contract, whether
in contract, tort (including negligence), breach of statutory duty, or
otherwise, including losses caused by a deliberate breach of the
Contract by the Supplier, its employees, agents or subcontractors shall
not exceed £5000.
11.1 The Purchaser shall indemnify the Supplier against all claims,
costs and expenses which the Supplier may incur and which arise,
directly or indirectly, from the Purchaser's breach of any of its
obligations under the Contract, including any claims brought against the
Supplier alleging that the Goods provided by the Supplier in accordance
with the Specification infringes a patent, registered deign, copyright
or trade secret or other similar right of a third party.
12. FORCE MAJEURE
12.1 Neither party shall be liable for any failure or delay in
performing its obligations under the Contract to the extent that such
failure or delay is caused by a Force Majeure Event. A Force Majeure
Event means any event beyond a party's reasonable control, which by its
nature could not have been foreseen, or, if it could have been foreseen,
was unavoidable, including strikes, lock-outs or other industrial
disputes (whether involving its own workforce or a third party's),
failure of energy sources or transport network, acts of God, war,
terrorism, riot, civil commotion, interference by civil or military
authorities, national or international calamity, armed conflict,
malicious damage, breakdown of plant or machinery, nuclear, chemical or
biological contamination, sonic boom, explosions, collapse of building
structures, fires, floods, storms, earthquakes, loss at sea, epidemics
or similar events, natural disasters or extreme adverse weather
conditions, or default of suppliers or subcontractors.
13.1 Assignment and subcontracting.
(a) The Supplier may at any time assign, transfer, charge, subcontract
or deal in any other manner with all or any of its rights or obligations
under the Contract.
(b) The Purchaser may not assign, transfer, charge, subcontract or deal
in any other manner with all or any of its rights or obligations under
the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in
connection with the Contract shall be in writing, addressed to that
party at its registered office (if it is a company) or its principal
place of business (in any other case) or such other address as that
party may have specified to the other party in writing in accordance
with this clause, and shall be delivered personally, sent by pre-paid
first-class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been
received: if delivered personally, when left at the address referred to
in clause 13.2(a); if sent by pre-paid first-class post or recorded
delivery, at 9.00 am on the second Business Day after posting; if
delivered by commercial courier, on the date and at the time that the
courier's delivery receipt is signed; or, if sent by fax or e-mail, one
Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any
proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the
Contract (or part of any provision) is invalid, illegal or
unenforceable, that provision or part-provision shall, to the extent
required, be deemed to be deleted, and the validity and enforceability
of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract
would be valid, enforceable and legal if some part of it were deleted,
the provision shall apply with the minimum modification necessary to
make it legal, valid and enforceable.
13.4 Waiver. A waiver of any right or remedy under the Contract is only
effective if given in writing and shall not be deemed a waiver of any
subsequent breach or default. No failure or delay by a party to exercise
any right or remedy provided under the Contract or by law shall
constitute a waiver of that or any other right or remedy, nor shall it
preclude or restrict the further exercise of that or any other right or
remedy. No single or partial exercise of such right or remedy shall
preclude or restrict the further exercise of that or any other right or
13.5 Third party rights. A person who is not a party to the Contract
shall not have any rights under or in connection with it.
13.6 Any variation to the Contract, including the introduction of any
additional terms and conditions, shall only be binding when agreed in
writing and signed by the Purchaser.
13.7 Governing law and jurisdiction. The Contract, and any dispute or
claim arising out of or in connection with it or its subject matter or
formation (including non-contractual disputes or claims), shall be
governed by, and construed in accordance with, English law, and the
parties irrevocably submit to the exclusive jurisdiction of the courts
of England and Wales.
Schedule 1 Order/Quotation
As per written quotation.
Schedule 2 Specification
As per Specification attached to Quotation.
Schedule 3 Service Items
* Brake Pads
* Filters (air / oil / water)
* Pump valves and Diaphram
* Brake Diaphram
* Oxygen Sensors (Lambda Sensors)
* Ignition Pick-Up Sensors
* Oils and Grease
Schedule 4 Warranty Period
Batteries 12 Months
Starter Motors 12 Months
Gas Analysing Units 12 Months
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