Terms of Business

November 2023

Durite Limited (Company, we, us, our), is a company incorporated in England and Wales under company number 373113 with its registered office at Durite Works, Valley Road, Dovercourt, Essex CO12 4RX.

1. Interpretation

1.1 In these terms and conditions of sale (the “Terms of Business”) the following words have the following meanings:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Contract: the contract between the Company and the Customer for the sale and purchase of the goods in accordance with these Terms of Business.
Customer or You: the person or firm who purchases the Goods from the Company.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods, or any part of them, set out in the Order.
Intellectual Property Rights: has the meaning contained in clause 14.2.
Order: the Customer's order for the goods as notified to the Company by telephone, in writing or by website enquiry, as the case may be.
1.2 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.
1.3 A reference to writing or written includes emails and website orders, but excludes faxes.

2. Orders

2.1 All orders are accepted and goods supplied only on the basis of these Terms of Business. No employee or agent of the Company has authority to accept orders on any other basis. By placing an order with us, whether or not by reference to our catalogue or website, the Customer (a) offers to buy our Goods on the Terms of Business set out hereunder and (b) waives any conditions or stipulations in, or made at the time of, the Order (or in its own standard documentation) which impose or seek to impose its own conditions or terms of purchase insofar as these are at variance with these Terms of Business, whatever the Customer's intention may be. These Terms of Business are exhaustive and no other terms which the Customer seeks, to impose or incorporate, or which are implied by law, trade practice or cause of dealing, shall be implied or introduced herein unless in writing signed by the party against whom they are to be enforced.
2.2 The Company reserves the right to accept or refuse orders and also to cancel or suspend delivery of any uncompleted order.
2.3 The Company may accept the whole or part of an order.
2.4 The Order, or any part of it, shall only be deemed to be accepted when the Company issues a written acceptance confirming the details of the Order, or any part of it, usually sent at the time of dispatch, at which point a binding contract shall come into existence.
2.5 All Orders or part orders which remain unaccepted or unfulfilled for any reason after 120 days from the Order date may be cancelled.
2.6 The Customer is responsible for ensuring that the contents of the Order are complete and accurate and the Company shall have no liability for any errors contained in the Order.
2.7 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. Descriptions

3.1 All descriptive specifications, drawings and particulars of performance and dimensions are approximate only.
3.2 The descriptions, drawings and photographs contained in the Company's catalogue, on the Company’s website, price lists and other marketing or advertising matter are intended merely to present a general idea of the goods described therein and none of these shall form part of the contract.
3.3 The Company reserves the right to modify without notice the designs and specifications for and the materials used in the Goods.
3.4 Prepacked Goods are only supplied in the quantities listed per pack or box.
3.5 Cancellation of Orders cannot be accepted if the work has already begun, or if the Goods have already been dispatched.

4. Part Numbers and Packs

Our part number refers to the complete pack as offered and not to a single unit. If part numbers and descriptions conflict on an Order the part number shall prevail as being correct.

5. Ordering by Telephone

We regret that under no circumstances can we accept any responsibility whatever for errors arising from Orders placed by telephone unless such errors are notified to the Company within 3 (three) days of delivery of the relevant order or, in the case of shortages or non- delivery, in accordance with the timeframes specified in the “Non-Delivery” section below.

6. Prices

6.1 All prices included in the Company's quotations are provisional and are subject to alteration upwards or downward without notice according to the Company's price or prices applying at the date of invoice.
6.2 Prices are exclusive of V.A.T. unless expressly stated to be V.A.T. inclusive.
6.3 The Company may invoice the Customer for the Goods on or at any time after the dispatch of the Goods.

7. Settlement Terms

7.1 The Customer shall pay the invoice in full and in cleared funds within 60 (sixty) days from the invoice date. The Company reserves the right to suspend delivery of any outstanding or future order if the Customer’s account is overdue.
7.2 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
7.3 If the Customer fails to make a payment due to the Company under the Contract by the due date, then the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.3 will accrue each day at 5% a year above the Bank of England’s base rate from time to time.

8. Returns and Handling Charges

8.1 Goods correctly dispatched against a Customer's Order may not be returned without the consent of the Company.
8.2 The Company reserves the right not to accept Goods returned for credit. However, if Goods returned are accepted for credit, a 10% handling charge will be made.
8.3 Goods returned to us for any reason must be sent carriage paid.

9. Packing and Dispatch

9.1 Details of delivery charges are as shown in our current price list and for Customer’s placing Orders using the Company’s website, at the point of placing an Order. These charges will apply unless an alternative amount is included in your invoice.
9.2 Delivery to more than one address can only be made as separate Orders and delivery charges will be made on each Order if values are less than our carriage paid minimum. If we are required to dispatch part of an Order separately from the rest of the Order, then that part will be treated as a separate Order and a delivery charge will be made.

10. Delivery

10.1 Any time quoted for dispatch is calculated from the later of the date (i) the Company confirms its acceptance of an Order, and (ii) all necessary information is provided to the Company to enable it to put the work in hand in order to fulfil the Customer’s Order.
10.2 The Company will use its reasonable endeavours to dispatch on the date requested but will accept no liability for failure to do so for any reason.
10.3 The time for delivery shall not be of the essence.
10.4 The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location).
10.5 Delivery shall be completed on the unloading the Goods at the Delivery Location or such other location as the parties may have agreed in writing.
10.6 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract.
[10.7 if the Company delivers up to and including 5% more or less than the quantity of the Goods ordered the Customer may not reject them.]

11. Damage in Transit

The Company will (at its option) repair or replace free of charge, Goods damaged in transit prior to reaching the Delivery Location, provided that the Company receives the requisite written notification of such damage within three days of receipt of the Goods. Unless such notification is received by the Company within that period the Company shall be under no liability for damage in transit. The Customer is advised in his own interest to inspect the Goods immediately on arrival. The packaging and contents should be retained and provided to the Company.

12. Non-Delivery

12.1 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
12.2 If the Customer fails to take delivery of the Goods within three Business Days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the Customer that the Goods were ready; and
(b) the Company shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

12.3 If ten Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and charge the Customer for any shortfall below the price of the Goods.
12.4 In the case of claims for shortages, all claims must be received in writing by the Company within three days of receipt of the Goods. No claim can be entertained unless, the terms of this clause 12.2 are complied with.

13. Customer's use of the Durite Brand

13.1 The Company is the registered proprietor of the registered UK trade mark in respect of the word mark ‘Durite’ (No. UK00000815937) registered in Nice Classes 6, 8 and 9 and 17 on 20 January 1961 and of the registered Community trade mark in respect of the word mark ‘DURITE’ (No. EU012731022) registered in Nice Classes 9, 11 and 12 on 26 March 2014 (Trade Marks).
13.2 The Customer acknowledges and agrees that it does not have any right, title or interest in the Intellectual Property Rights in the ‘Durite’ brand, including the trading name ‘Durite’ and all related marks and logos including the Trademarks (Brand).
13.3 All Intellectual Property Rights in the Brand and in any goodwill in respect of the use of the Brand is and shall remain the exclusive property of the Company.
13.4 The Customer shall not use the Trademarks as, or as part of, its own trading name, and shall not register, or permit to be registered on its behalf or otherwise, any domain name incorporating the Trademarks.
13.5 Where the Customer is acting as a reseller, it shall make it clear to its customers in its catalogues, price lists, marketing and other sales materials and on its website that it supplies the Company’s products in its capacity as a ‘Durite Stockist’.

14. Intellectual Property in the Goods

14.1 In the event of any claim being made or action being brought against the Customer in respect of the infringement of a third party’s Intellectual Property Rights by the manufacture or sale of goods supplied to the Customer by the Company, the Customer shall make no admissions in respect thereof but shall notify the Company immediately, and the Company shall be at liberty with the Customer's assistance if required, but at the Company's expense, to conduct all negotiations for the settlement of the same or any litigation that may arise therefrom, subject to such notification and providing that no such goods, or any part thereof shall be used for any purpose other than that for which they were supplied to the Customer, the Company will indemnify the Customer in respect of such claims.
14.2 In these Terms of Business, Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

15. Warranty

15.1 The Company warrants that on delivery, and for a period of 12 (twelve) months from the date of delivery (or such other period as stated by the Company in its acceptance of order in connection with specific Goods), the goods shall be free from any material defect in workmanship and materials and shall correspond with any agreed specification agreed in writing by the parties but the Company’s liabilities under this warranty shall be limited to (at its option) repairing or replacing any defective goods or, if the Company considers that a repair or replacement is not practicable, refunding such Goods.
15.2 The Company’s liability under this warranty is also conditional upon:
a) Written notice of the defect being given to the Company within 14 (fourteen) days after discovery of the same; and
b) The Goods having been properly stored, installed and used, in accordance with any operating instructions supplied with the Goods, by the Customer prior to the defect occurring; and
c) The Goods not having been subjected to any abnormal or improper use or storage or alteration, repair or modification;
d) The defect in the Goods not having been the result of fair wear and tear, wilful damage, negligence or abnormal working conditions; and
e) The Goods having been returned at the Company's request but at the Customer’s expense for inspection in original packaging.
15.3 The Company is not liable or responsible for any lost data from data storage devices.
15.4 If the Company is liable under the warranty set out in this clause 15, the Company shall, at its option, repair or replace the defective Goods (in which case the warranty will only extend to the end of the warranty on the originally supplied Goods) or refund the defective Goods in full.
15.5 These Terms of Business shall apply to any repaired or replacement goods supplied by the Company.

16. Limitation of Liability

16.1 Nothing in these Terms of Business shall limit or exclude the Company’s liability for: 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; c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; d) defective products under the Consumer Protection Act 1987; or e) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
16.2 Subject to clause 16.1 above:
a) the following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.

b) The Customer agrees that the Company’s total liability to the Customer in respect of any other loss, damage, claim or liability arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances ever exceed twice the original invoice value of the goods in respect of which the loss, damage, claim or liability arises.
c) The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

17. Data Protection & Marketing Communications

17.1 The Company undertakes to comply with the Data Protection Legislation and any replacement legislation from time to time in force, to the fullest extent necessary.
17.2 Personally identifiable information (name, email, billing/delivery address) will be retained under the Data Protection Legislation for the purposes of fulfilling the Customer's order.
17.3 In this clause 17.3, Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018) the UK GDPR (as defined in section 3(10) (as supplemented by section 205(4)) of the DPA 2018); and the Privacy and Electronic Communications Regulations 2003 as amended.
17.4 The Company’s privacy policy contains further information about processing of personal data, and the Customer must consider it carefully. In particular (without limitation) the privacy policy contains information about the Company’s use of personal data for marketing purposes. The privacy policy can be accessed on the Company’s website www.durite.co.uk/privacy-policy.

18. Customer's Risk

Goods shall be entirely at the Customer's risk as from date of delivery to the address stated in the delivery instructions.

19. Passing of Title

19.1 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Company receives payment in full (in cash or cleared funds) for the Goods in which case title to the Goods shall pass at the time of payment; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 19.3.
19.2 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(b) not remove, deface or obscure any identifying mark or packaging o or relating to the Goods; and
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
19.3 Subject to clause 19.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Company’s agent; and
(b) title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
19.4 At any time before title to the Goods passes to the Customer, the Company may:
(a) by notice in writing, terminate the Customer’s right under clause 9.3 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

20. Force Majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate the Contract by giving 10 days’ written notice to the affected party.

21. Conflict Minerals

Where the Customer is subject to the EU Conflict Minerals Regulations 2017 (the 2017 Regulations), the Company shall apply the due diligence procedures in the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas when sourcing minerals to which the 2017 Regulations relate in connection with the manufacture of the Goods.

22. Contracts (Rights of Third Parties) Act 1999

Unless expressly agreed between the Company and the Customer, nothing in these Terms of Business shall be enforceable by any person who is not party to them.

23. Assignment and other dealings

23.1 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
23.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.

24. Entire agreement

24.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
24.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

25. Variation

No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

26. Waiver

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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

27. Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

28. Notices

28.1 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 or other next working day delivery service, commercial courier, or fax or email.
28.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 28.1; if sent by pre-paid first class post or other next working day delivery service, 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 email, one Business Day after transmission.
28.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

29. Governing law

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

30. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.