Dessian Products Limited Terms and Conditions of Contract
IN THESE CONDITIONS:-
(i) “Company” means Dessian Products Limited, incorporated in Northern Ireland (N.I. no 019016) whose registered office is at 9 Apollo Road, Adelaide Industrial Estate, Belfast, BT12 6HP.
(ii) “Customer” means the person with whom the Company contracts.
(iii) “Contract” means the contract between the Company and the Customer for the sale and purchase of Goods which incorporates the Contract Terms.
(iv) “Order” means a written request on specified Company order stationery or sent through the Company’s Business Micros computer software.
(v) “Contract Terms” means these Terms and Conditions of Contract together with any other terms or matters incorporated in accordance with Clause 2 below.
(vi) “Goods” means the goods, materials, documentation and/or other items or services to be supplied pursuant to the Contract.
(vii) “Group Company” means any company which belongs to the “group” of companies as defined by section 474 of the Companies Act 2006 in which the Company is a subsidiary company and “Group Companies” refers to more than one Group Company.
2.1 The Contract will be subject to and incorporate the Contract Terms to the exclusion, save where the context otherwise requires, of any other items (including any standard terms and conditions) proffered by the Customer whether or not such other terms are enforced upon, delivered with, or referred to in any purchase order or other document delivered by the Customer to the Company. The foregoing shall not operate to exclude any conditions implied by statute the exclusion of which would be void. Amendments to the Contract Terms will only be incorporated into the Contract if expressly accepted by the Company in writing and signed by a Director of the Company.
2.2 The Company shall not be bound by any quotation or tender or Order for goods and/or services and the Company reserves the right to withdraw or amend the same at any time prior to the Company’s acceptance of the Customer’s Order.
2.3 Each Order or acceptance of a quotation for goods and/or services by the Customer shall be deemed to be an offer by the Customer to buy goods and/or services subject to these Terms and Conditions of Contract.
2.4 No Order from the Customer shall be binding on the Company until such time as the Company has accepted the Order and until then any price will be a quotation subject to change without notice.
2.5 Any Order shall only be deemed accepted by the Company when it proceeds to manufacture and until such time it shall not be deemed accepted.
2.6 If the Customer wishes to cancel an Order, a cancellation request must be provided in writing either by facsimile or recorded first class post and said request must be received by the Company before manufacture has commenced.
2.7 All descriptions, specifications, drawings and other particulars submitted by the Company are for guidance only. All descriptions and illustrations in the Company’s price list and any other advertising material shall not form part of any Contract and the Contract shall not be a sale by sample. All glass sizes or formulae for the calculation thereof are supplied by the Company for the convenience of the Customer but the Company shall be under no liability in respect of or arising out of any inaccuracy therein. The Customer is responsible for selecting Goods suitable for its intended use and to achieve its required results.
3.1 Once an Order is accepted, the Company reserves the right to amend the price: 3.1.1 to cover increased costs in manufacture and/or delivery notified to the Company after the time of acceptance as a result of increased costs of materials, labour, freight and transport, or any tax, fee or charge imposed by any Government or competent authority; and/or 3.1.2 where it can be clearly established that the Company has issued an incorrect quotation.
3.2 The prices payable for any Goods shall be as shown in the Contract except that if all or any part of the Goods are not delivered within the time of delivery (as hereinafter provided) for any reason wholly or partly beyond the control of the Company the price of such relevant part thereof may be altered by the Company to reflect any increase in its then current price list.
3.3 All prices estimated or quoted are so estimated or quoted exclusive of VAT or any other similar tax duty or levy. VAT or any other applicable tax duty or levy will be charged to the Customer in respect of any Goods invoiced or Orders accepted at the then prevailing rate.
4. PAYMENT TERMS, FAILURE TO PAY, TITLE AND RISK
4.1 Payment terms will be confirmed by the Company to the Customer in writing following completion of the New Customer Trading Form and such payment terms and any discounted prices offered may be varied by the Company with immediate effect upon the provision of written notice by the Company to the Customer at the Customer’s last known address and the varied payment terms and/or varied prices shall apply to all Customer Orders accepted by the Company following the provision of such notice. Until such a time as written notice of payment terms and any discounted prices is given by the Company to the Customer, any Orders placed must be paid in full in cash in advance of the commencement of production. All payments due to the Company from the Customer are to be paid in full without deduction or set-off other than as required by law.
4.2 Time of payment is of the essence. If payment of the price for any Goods is overdue, the Company shall be entitled, at its sole discretion and without prejudice to any other rights as it may have, to take any one or more of the following actions: 4.2.1 at any time enter upon any premises where the Goods are or may be stored in order to inspect them or to recover such Goods or any part thereof; 4.2.2 withhold or suspend delivery of any part of the relevant order or the whole or part of any other order until payment in full (including interest as hereinafter provided) has been made and any cheque in payment has been cleared in the ordinary course of banking business; 4.2.3 decline to deliver any further Goods, notwithstanding the provisions of clause 5 hereof, in which event the Customer shall be responsible for uplifting the same upon payment as provided above and upon such uplifting the risk shall pass to the Customer; and/or 4.2.4 store any Goods pending delivery or uplifting as aforesaid, the cost of such storage being the responsibility of the Customer.
4.3 Interest on overdue accounts will be charged at the rate of 3% p.a. over Ulster Bank standard lending rate and interest will accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.4 All costs (including legal costs) incurred in connection with processing and collecting overdue accounts will be charged to the Customer’s account.
4.5 Title to the Goods will pass to the Customer only once the Company has received payment in full from the Customer together with any and all other sums owing and or due to the Company of whatsoever nature and whether under the Contract or otherwise and no payment shall be deemed to have been received from the Customer until the Company has received a banker’s draft or cash. Until title to the goods has passed to the Customer, the Customer will: 4.5.1 hold the Goods as bailee for the Company; 4.5.2 store the Goods separately from all other material in the Customer's possession; 4.5.3 take all reasonable care of the Goods and keep them in reasonable condition; 4.5.4 insure the Goods with a reputable insurer from the date of delivery against all risks for an amount at least equal to the price noting the Company's interest on the policy; 4.5.5 ensure that the Goods are clearly identifiable as belonging to the Company; 4.5.6 not remove or alter any mark on or packaging of the Goods; 4.5.7 inform the Company as soon as possible if it becomes subject to any of the events set out in clause 4.9; 4.5.8 provide the Company with such information concerning the Goods as the Company may request from time to time; and 4.5.9 redeliver the Goods to the Company at the Customer’s expense and, if the Customer fails to do so promptly, grant the Company irrevocable right and licence to enter any premises where the Goods are stored and repossess them. This clause 4.5 shall be binding on the Customer, its staff, agents and any receiver, liquidator or trustee in bankruptcy or such other person as may be appointed by the Courts in relation to the Customer.
4.6 Notwithstanding clause 4.5, the Customer may use the Goods before ownership has passed in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clause 4.9 is or is likely to occur.
4.7 Notwithstanding clause 4.5, the Customer may resell the Goods before ownership has passed where the sale is at full market value in the ordinary course of the Customer’s business on the Customer’s own behalf dealing as principal until such time as it becomes aware or ought reasonably to have become aware that an event specified in clause 4.9 is or is likely to occur and where the Goods have been re-sold the Customer shall hold such part of the proceeds of sale as represents the amount owed by the Customer to the Company for the relevant Goods separately (in a bank account that does not contain any third party monies and is not overdrawn) on trust on behalf of the Company and the Customer shall promptly account to the Company on such sale.
4.8 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Company, or the Company reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clause 4.9, the Company may require the Customer at the Customer's expense to redeliver the Goods to the Company and, if the Customer fails to do so promptly, the Company or its agents may enter any premises where the Goods are stored and repossess them.
4.9 Until title to the goods has passed to the Customer, the Customer’s right to possession of the Goods shall terminate immediately if: 4.9.1 the Customer has a bankruptcy petition or 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 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 Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; 4.9.2 the Customer 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 Customer, or is unable to pay its debts within the meaning of the Insolvency (Northern Ireland) Order 1989 or the Customer ceases to trade; and/or 4.9.3 the Customer encumbers or in any way charges any of the Goods.
4.7 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.
4.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
4.9 On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in conditions 4.3 to 4.10 shall remain in effect.
4.10 Notwithstanding the conditions contained herein, all risk attached to goods supplied to the Customer by the Company shall pass from the Company to the Customer upon delivery. Delivery to a carrier, person or persons, firm or company on behalf of the Customer shall constitute delivery. If the Customer fails to take delivery of the goods the risk in the goods will pass automatically to the Customer at the time when the Company has tendered delivery of the goods.
5.1 Delivery dates mentioned in any quotation or acceptance form or elsewhere are approximate only and not of any contractual effect and the Company shall not be under any liability to the Customer in respect of any failure to deliver on any particular date or dates.
5.2 Delivery shall be to the address on the relevant order form. All unloading (whether at the Customer’s premises or nominated site) is at the Customer’s sole risk and expense. Delivery in either case shall be deemed to be effected in respect of any Goods upon the arrival at the entrance to such place of delivery. It is the Customer’s responsibility to be available for the acceptance of Goods.
5.3 The Company reserves the right to deliver an order by instalments.
5.4 If any order for Goods is to be delivered by two or more instalments, each such instalment shall be treated as a separate contract and the rights of the parties hereto shall be construed accordingly.
5.5 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.6 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within 30 days of the date when the Goods would in the ordinary course of events have been received.
5.7 If the Customer refuses or fails to take delivery of Goods tendered in accordance with the Contract the Company shall be entitled to immediate payment in full for the Goods so tendered. The Company shall be entitled to store at the risk of the Customer any Goods which the Customer refuses or fails to take delivery of and the Customer shall in addition to the purchase price pay all costs of such storage and any additional cost or carriage incurred as a result of such refusal or failure. Refusal by the Customer to take delivery will relieve the Company from the obligation to make further deliveries without prejudice to the Company’s right to recover damages for such refusal.
5.8 Where the Goods are to be collected from the Company’s premises by the Customer or by an agent acting on the Customer’s behalf, liability passes to the Customer upon collection, and such goods shall be deemed to have been collected in good order and condition.
5.9 The Customer shall indemnify the Company against any damage to or loss of any Goods following delivery until receipt by the Company of the full price for such Goods.
5.10 In the case of the Contract for any order involving more than one delivery, if default is made in payment on the due date, the Company shall have the right to suspend all or any further deliveries pending payment or to terminate the Contract in its entirety by notice in writing to the Customer.
6.1 The Customer is deemed to have accepted the Goods upon delivery unless the Company is notified in writing to the contrary by the Customer within 48 hours from the date of delivery or uplifting.
6.2 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence, nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
6.3 Any claim for defect as to size, colour, and specification will not be considered after utilisation or installation of any goods.
Any testing and/or inspection required under the Contract shall be carried out at the Company’s works or such other place or places as the Company may appoint and shall be accepted as final by both parties.
The Customer shall indemnify the Company against any and all claims, costs, demands and expenses incurred by or made against the Company involving any infringement or claim of infringement of any intellectual or industrial property right of any third party as a direct or indirect result of the carrying out of any work required to be done on or to the Goods in accordance with the requirement or specifications of the Customer.
9.1 The Company shall be under no liability in respect of any defect or failure arising from or related to any fair wear and tear, wilful damage, negligence, abnormal conditions, failure to comply with the Company’s instructions or with good practice and/or the Customer repairing any Goods without the Company’s prior written agreement, or misuse.
9.2 There shall be no warranty or assurance by the Company that any particular Goods are fit for any specific purpose or application unless the Company shall have given such assurance to the Customer in writing.
9.3 The Company shall not be liable for any shortage in quantities delivered nor for any defect in the quality nature or condition of the Goods nor for failure of the Goods to comply with any specification unless a claim in writing shall have been received by the Company from the Customer within 48 hours of delivery of the Goods.
9.4 In the event of any shortage, defect or failure of the Goods to comply with specification the Company may, at its own option, make good the shortage and/or as appropriate replace or repair free of charge any Goods found to be defective by reason of faulty material or workmanship, provided that as a condition thereof the Company may require that the Goods concerned are returned. These Terms and Conditions of Contract will apply to any Goods repaired or replaced and any shortage made good under this clause 9.4.
9.5 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the cost of replacing or repairing defective Goods or making good any shortage.
9.6 The Company shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9.7 The Customer shall indemnify the Company from and against all loss, damage or liability suffered or incurred by the Company or any third person for or arising out of the negligence, breach of statutory duty, breach of contract or other duty of the Customer or its officers, employees, agents or contractors, in each case in the course of performance of or otherwise in any way arising out of or in connection with the Contract.
9.8 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation or for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
9.9 The Company shall not be liable in respect of any misrepresentation made by the Company its servants or agents unless the representation is made and confirmed in writing by the Company and/or is fraudulent.
9.10 The Customer shall indemnify the Company against any actions, costs, claims or damages however incurred arising in respect of any Goods or services supplied to the Customer in accordance with any Contract.
10. FORCE MAJEURE
10.1 The Company shall not be liable to the Customer for any loss or damage which may be suffered by the Customer as a direct or indirect result of the supply of Goods by the Company being prevented hindered delayed or rendered uneconomic by reason of any force majeure circumstances.
10.2 In this Condition “Force Majeure Circumstances” shall mean any Act of God, riot, strike, lock-out, trade dispute or labour disturbance: accident breakdown of plant or machinery, fire, flood difficulty or increased expense in obtaining workmen materials or transport, or other circumstances whatsoever outside the reasonable control of the Company affecting the provision of the Goods or of raw materials thereof by the Company’s normal source of supply or the delivery of the Goods by the Company’s normal route or means of delivery.
If the Customer enters into a Deed of Arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or (being a Company) it shall pass a resolution for winding-up or the Court shall make an order that the Company shall be wound up (otherwise than for the purposes of amalgamation or reconstruction) or if a receiver shall be appointed of any of the assets or undertakings of the Customer or if circumstances shall arise which entitle the Court or creditor to appoint a receiver or manager or which entitle the Court to make a winding up Order or if the Customer takes or suffers any similar action in consequence of debt or commits any breach of the Contract the Company may stop any Goods in transit and suspend further deliveries and by notice in writing to the Customer may forthwith determine the Contract without prejudice to the provisions of Clause 4 hereof and to any existing claims.
Failure by the Company to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times hereafter.
Any notices hereunder shall be in permanent readable form and shall be deemed properly addressed if addressed to the party concerned at its principal place of business or last known address.
14. DATA PROTECTION
14.1 The Company is committed to the fair and proper processing of all personal data held about customers. In the course of the Company’s dealings with customers, customers may provide us with personal data (which may be used to identify the Customer), such as name, address and contact details. This clause 14 sets out the basis on which the Customer’s personal data will be held and processed by the Company.
14.2 The Company, or its appointed representatives, will use the Customer’s personal data in the following ways: 14.2.1 to provide the products, services and/or information that the Customer has requested from the Company; 14.2.2 to send the Customer important safety information; 14.2.3 to ask for the Customer’s opinion about the Company’s products and/or services and to help improve the Company’s products and services, including by contacting the Customer to ask the Customer to complete customer satisfaction surveys; 14.2.4 to provide the Customer with information about other products and services that the Company believes may be of interest to the Customer where the Customer has consented to the Company contacting the Customer for these purposes; 14.2.5 to prevent and detect fraud and money laundering; 14.2.6 to collect debts owed by the Customer to the Company; and 14.2.7 for customer analysis, profiling and research purposes.
14.3 The Company may share the Customer’s personal data in the following ways: 14.3.1 with a purchaser of the Company; 14.3.2 with any third party to whom the Company assigns its rights under any agreement the Company has with the Customer to enable them to exercise those rights; 14.3.3 where the Company is required to disclose information for legal or regulatory purposes; and 14.3.4 in connection with legal proceedings or in the course of exercising the Company’s legal rights.
14.4 With the Customer’s consent, the Company would like to use the Customer’s personal data to contact the Customer for marketing purposes in relation to products or services the Company thinks may be of interest to the Customer. The Customer is invited to indicate their consent to the Company making contact for marketing purposes, by advising the Company of their preferred method of contact: post email, telephone and/or text message.
14.5 The Customer has the following rights in relation to the Customer’s personal data held by the Company: 14.5.1 the right to ask the Company not to process the Customer’s personal data for marketing purposes; and 14.52 the right to access information held about the Customer. To exercise either of these rights, the Customer must write to the Company at 9 Apollo Road, Adelaide Industrial Estate, Belfast BT12 6HP or email firstname.lastname@example.org with the subject “Privacy”. Any access request may be subject to a fee of £10 to meet the Company’s costs in providing details of the information held. If the Customer has any questions about the Company use of personal data please contact the Company at email@example.com.
The Customer shall indemnify the Company against all actions, claims and costs damages or losses arising from any infringement of letters patent design trade mark or copyright protected by law in respect of any Goods made or supplied by the Company.
The Customer may not assign the Contract without the written consent of the Company. The Company may assign or sub-contract the Contract or any part of it to any person, firm or company. Subject to this clause, the Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
17.1 The Company may at its discretion and without prejudice to any of its other rights suspend performance of its obligations hereunder at any time and from time to time if the Customer shall be in breach of any of its obligations hereunder.
17.2 Clause headings in these terms are for guidance only and do not form part of such terms.
17.3 Any Contract shall be governed by or construed in accordance with the law of the domicile of the Company and the parties agree to submit to the exclusive jurisdiction of the Courts of that domicile.
17.4 If any provision herein contained is held by any Court or other competent authority to be invalid or unenforceable in whole or in part, the remainder of such provision and all other provisions contained herein shall nonetheless be deemed valid and subsisting.
17.5 These terms and Conditions of Contract shall apply to repaired or replacement goods supplied by the Company.