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CONDITIONS OF SALE
| GENERAL December 2003 | |
| 1. | (a)
Any quotation or estimate or price list given by the Company is
an invitation to the Customer to make an offer only and no order
of the Customer placed with the Company in pursuance of a quotation
or estimate or otherwise shall be binding on the Company unless
and until it is accepted by the Company. (b) Any contract howsoever made, between the Company and the Customer shall incorporate and be subjected to these conditions and receipt of goods by the Customer shall be deemed to be conclusive proof that the Customer has accepted these Conditions in the absence of any express or other implied acceptance of these Conditions by the Customer. (c) Without prejudice to the generality of the foregoing all other te rms and conditions (except those implied in favour of a seller which are not inconsistent with these Conditions) are expressly excluded. |
| PRICES | |
| 2. | Unless
otherwise agreed in writing (a) Goods are sold and will be invoiced at the prices ruling at the date of despatch (orders for €65 or less excluding carriage and surcharge will not be accepted) and the Company reserves the right to alter prices without notice in order to reflect increases in the cost of materials, labour, transport, energy and other costs which it has to incur in manufacturing and supplying goods. (b) Prices on goods are stated exclusive of Value Added Tax, which will be charged in addition at the rate applicable at the appropriate tax point. (c) For consignments having a net value (net of Value Added Tax) of €320 or more, the cost of carriage by normal road transport to the Customers own Warehouse, in Ireland is paid by the Company. Below €320 there will be a minimum carriage surcharge of €10.00. If any other form of transport or destination is stipulated by the Customer, the cost of carriage will be paid by the Customer. (d) The cost of any variation or modification in the design specification, materials or drawings of goods requested by the Customer shall be borne by the Customer. |
| DELIVERY AND RISK | |
| 3. |
(a) The risk in respect of all goods shall pass to the Customer
at the time of delivery and notwithstanding such delivery, the property
in the title to the goods shall not pass to the Customer except
as provided in Condition 4. Except in the case of goods collected
by the Customer, delivery of goods to the Customer will be made
at the place agreed between the parties but where the Company does
not deliver on its own transport (and unless otherwise agreed in
writing) the Company shall arrange for the delivery of goods by
carrier and special notice is directed to the fact that in accordance
with the provisions of Section 32 of the Sale of Goods Act 1980
delivery to the carrier will, in such circumstances, constitute
delivery to the Customer if the Customer collects goods delivery
shall take place at the Company's own works imme-diately prior to
loading on to the Customer's transport. Customers may collect their
order from our warehouse by previous arrangement only. (b) The company shall be entitled to make delivery of the goods by instalments and to invoice the Customer for each instalment despatched. (c) Discrepancies in the amount or description of goods supplied and/or damage to or loss of goods in transit prior to delivery will be remedied free of charge in such manner as the Company consider appropriate provided that:- (i) the Customer marks the Delivery Note "contents unexamined", and (ii)the Customer gives written notice of such damage loss or discrepancy with reasonable particulars thereof to the Company and to the carrier (if other than the com-pany) within 3 days of the receipt of the goods or, in the case of total loss or non delivery of consignments within 7 days of receipt of the Company's or carrier's delivery advice, invoice or other notification of despatch or in the case of loss or non-delivery of consignments, Customers must notify within 21 days of date of invoice in writing. Notifications later than these times cannot be entertained as we will be unable to make the necessary claims against carriers. (iii)the Customer, if requested by the Company, and at the Customer's cost returns any damaged or incorrect goods to the Company's works within one month of receipt thereof. (iv)the goods when delivered shall be at the sole risk of the Customer and the Customer shall be bound to insure them for their full value. |
| TITLE | |
| 4. |
(a) Title and property in the goods supplied by the Company shall
remain vested in the Company (notwithstanding the delivery of the
goods and the passing of the risk in them to the Customer) until:-
(i) the price of the goods, and (ii)all other money due from the Customer to the Company on any other account has been paid or satisfied in full. (b) "Title to and property in goods supplied by the Company to a carrier for transport shall remain vested in the Company (notwithstanding the delivery of the Goods and the passing of the risk in them to the customer) until the price of the goods has been paid or satisfied in full". (c) Until the title to and property in the goods pass to the Customer the following provisions shall apply:- (i) The Company may at any time without prior notice to the Customer repossess and resell the goods if any of the events specified in Condition 15 occur or if any sum owned by the Customer to the Company under this or any other contract or any other account is not paid on the due date for payment. For the purpose of exercis-ing its rights under this subparagraph (i) the Company, its employees or agents together with all vehicles and plant considered by the Company to be necessary shall be entitled at any time without prior notice to the Customer to free and unrestricted entry upon the Customer's premises and/or other locations where any of the goods are situated. (ii)The Customer shall store the goods in a proper manner without charge to the Company and ensure that they are clearly identified as belonging to the Company. Without prejudice to paragraph (b) of this Condition, the Company shall be entitled to examine the goods in storage at any time during normal business hours and upon giving the Customer reasonable notice of its intention to do so. (iii)The rights and remedies conferred upon the Company by this Condition 4 are in addition to and shall not in any way prejudice, limit or restrict any other rights or remedies of the Company. (d) Until the Company is paid in full for all goods the relationship with the Buyer to the Company shall be fiduciary in respect of the goods and if the same are sold by the buyer the Company shall have the right to trace the proceeds thereof according to the principles in re Hallett's Estate (1880) 13Chd 696, (1874-80) all England Re-ports page 793. A like right for the Company shall apply where the buyer uses the product in any way so as to be entitled to payment from a third party. (e) For the purpose of these Conditions and in the absence of evidence to the contrary goods supplied at any time by the Company to the Buyer shall be deemed to have been resold, used, or processed in the order in which they were supplied. |
| PERFORMANCE | |
| 5. |
(a) The Company will use its reasonable endeavours to comply with
any date or dates for despatch or delivery of the goods requested
by the Customer, but unless oth-erwise expressly agreed in writing,
such date or dates shall not be binding. If the Company having used
its reasonable endeavours fails to despatch or deliver the goods
by such date or dates, its failure shall not constitute a breach
of contract nor shall the Customer be entitled to repudiate or rescind
the contract in whole or in part or claim compensation for such
failure or for any consequential loss or damage resulting therefrom.
(b) If the Company is prevented, or hindered from performing the contract or any part thereof by any circumstances beyond its reasonable control including (but without limiting the generality of the foregoing) strikes, lockouts or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire or other natural disasters, further performance shall be suspended for so long as the Company is so prevented or hindered; (c) Where goods are delivered by instalments, each such instalment shall be deemed to be sold or supplied under a separate contract to which these Conditions shall apply (mutates mutants) and save as provided in Condition 9 no default in respect of any one instalment shall affect or prejudice due performance of the contract as re-gards any other instalments: (d) If performance by the Company is suspended at the request of or delayed through default of the Customer (including, without prejudice to the generality of the foregoing, lack of incomplete or incorrect instructions or refusal to collect or accept delivery of the goods) for a period of 7 days the Company shall be entitled to pay-ment for goods supplied or ordered and any other additional costs thereby incurred including storage, insurance and interest provided that if the Customer fails to collect or accept delivery of the goods or any part thereof within 28 days of written notification from the Company that the goods are ready for collection or delivery, the Company shall be entitled (without prejudice to its other remedies for such breach) to sell the goods and to apply the proceeds of sale towards payments of all sums then due by the Customer to the Company. (e) The Company shall be entitled without the prior approval of the Customer to assign, subcontract or sublet the contract or any part thereof, but the Customer shall not be so entitled without the prior approval of the Company. (f) Goods offered "ex stock" are offered for sale subject to them being unsold on receipt of the Customer's order. |
| ACCEPTANCE | |
| 6. | Without prejudice to the Customer's rights under Condition 13, the Customer shall be deemed to have accepted the goods as being in conformity with his order and shall be bound to pay for them unless written notice of rejection is received by the Company within 7 days of delivery. Save in the circumstances referred to in Condition 13, goods accepted by the customer cannot subsequently be returned and any claim which the Customer might otherwise have shall be deemed to have been waived. Products offered are designed for use on doors, windows, cabinets and similar fittings for use in normal building construction as recommended in our literature, where a customer wishes to use products outside the recommended criteria, reference should be made to our technical dept and instructions followed. |
| CANCELLATIONS AND AMENDMENTS | |
| 7. | Cancellation of order will only be accepted after written approval from the Company. The seller reserves the right to refuse cancellation of an order if it has been party or wholly made, alternatively, to claim from the buyer the cost of the work already completed. Amendments to orders must be agreed in writing subject to the conditions govern-ing cancellations. Any alterations in price resulting from a change in order will be advised at the time of acceptance. |
| RETURN OF GOODS | |
| 8. | Goods may only be returned for credit after agreement by the seller in writing and, if accompanied by an advice note. A 20% handling charge will be made as standard, and any other costs incurred in getting the goods in a re-saleable condition. A repackaging charge may also apply. Any offer of credit by the seller will be discretionary, subject to the condition and re-saleability of the goods on arrival back at the works. The invoice number and date relating to the purchase must be stated on the accompanying advice note. |
| PAYMENT | |
| 9. | Unless
otherwise agreed in writing. (a) Payment for goods supplied shall be made not later than 30 days after the end of the month of invoice. (b) Time of payment shall be of the essence of the contract. Payment of the price shall be made within the period after delivery specified in the relevant invoice or agreed trading terms without reduction or deferment on account of dispute, cross claims or any other reason whatsoever. If the Customer shall fail to make payment on the due date for goods ordered or delivered under this or any other contract the Customer may have with the Company, the Company may suspend further deliveries under this or any other such contract, and if payment or any part thereof shall remain in the arrest for 7 days after written demand shall have been made therefore, the Company may cancel this or any other contract, and in either case without prejudice to any other right the Company shall have. The Company shall be entitled to charge interest at the rate of 2 per cent per month on any overdue account. |
| DRAWINGS AND SPECIFICATIONS | |
| 10. | (a)
Unless otherwise expressly agreed in writing, all illustrations
and dimensions shown in the Company's catalogues and other sales
literature are approximate. The Company gives no guarantee or representation
that the goods will in all cases be identical with the illustrations
and dimensions specified in such catalogues and litera-ture due
to improvements and modifications to the goods or their specifications
that may be made from time to time. (b) The Customer shall be solely responsible for satisfying itself that the goods are suitable or fit for the specific purpose for which they are required and all implied conditions and warranties to this effect are excluded. |
| REPAIR WORK | |
| 11. | When Engineers or Representatives of the seller are requested to attend a location by the buyer for the purpose of carrying out repair work, and it is found that no fault lies in the manufacturing of the sellers products, then the seller reserves the right to charge the buyer for any expense incurred as the result of a visit. |
| WARRANTY AND LIMITATION OF LIABILITY | |
| 12. | (a)
Where any goods are shown, to the reasonable satisfaction of the
Company, to be defective by reason of faulty materials or workmanship
within a period of 6 months from the date of the original despatch
or supply; except where the products are covered by the company's
five year guarantee, (fair wear and tear excepted) the Company shall
deliver replacement goods to the Customer free of charge provided
that - (i) the Customer notifies the Company in writing within 14 days of becoming aware of any such defect, and (ii)all defective goods are first returned to the Company's premises with carriage paid by the Customer, and (iii)the goods have been properly and correctly stored, used and/or fitted; The liability accepted by the Company under this paragraph (a) shall be accepted by the Customer in substitution for and to the exclusion of any other claims (whether in contract or in tort) for direct injury loss or damage which the Customer has or may have for defective goods; (b) The liability of the Company for any claim or claims other than those falling within paragraph (a) of this Condition for direct injury, loss or damage made by the Customer against the Company whether in contract or in tort arising out of or in connection with any act, omission, neglect or default of the Company its servants or agents in the performance of the contract (including, without limiting the generality of the foregoing, breach of any condition or warranty whether express or implied by statute, common law or otherwise howsoever) shall not exceed a sum equal to 10% of the invoice value (net of Value Added Tax) of the goods supplied or to be supplied under the relevant contract. (c) The Company shall not be liable for any claims for economic loss, loss of production, loss of profit, loss of opportunity, loss of bargain or other indirect or conse-quential injury loss or damage made by the Customer against the Company whether in contract or in tort arising out of or in connection with any such act, omission, neglect or default referred to in paragraph (b) of this Clause; (d) Nothing in these Conditions shall:- (1)limit or exclude the liability of the Company in respect of death or personal injury resulting from the negligence of the Company, its employees or agents; or (2)exclude the conditions and warranties implied by Section 12 of the Sale of Goods Act 1980. |
| SPECIAL GOODS | |
| 13. | In
respect of goods made or adapted specifically to the Customer's
design and specifications ("Special Goods"):- (a) the Company shall be entitled to reject any materials supplied or specified by the Customer which the Company in its judgement considers unsuitable. Additional costs incurred by the Company if such materials are judged to be unsuitable will be charged to the Customer. Quantities of materials supplied by the Customer shall be adequate to cover normal spoilage; (b) the Company accepts no responsibility for the accuracy or suitability of patterns, designs, tools drawings, particulars or specifications relating to Special Goods which are supplied by the Customer and the Company shall be entitled to accept the same as being without defect. The Company shall have no responsibility for the quality or fitness of Special Goods for any particular purpose whether or not such purpose is made known to the Company and all implied conditions and warranties as to suitability and/or fitness for purpose are excluded. The Customer undertakes to indemnify the Company and to keep the Company fully indemnified against all action proceedings, claims, costs, loss damage or expense whatsoever whether arising in contract or in tort which the Company may suffer or incur as a result of any defect in Special Goods whether due to quality, design, fitness for purpose or in any other way whatsoever unless the same is due directly to the negligence of the Company, its employees or agents; (c) The Customer represents and warrants to the Company that neither the Special Goods nor the manufacture thereof by the Company will infringe any patent, copyright, registered design, trade mark, or other proprietary right of any third party and the Customer further undertakes to indemnify the Company and keep the Company fully identified against all actions, proceedings, claims costs, loss, damage or expense whatsoever in respect of any infringement by the Company of any patent, copyright, registered design, trademark or any other proprietary right which the Company may suffer or incur in connection with the execution and performance of the con-tract and such indemnity shall extend to any amount including costs paid by the Company (including legal advice) in settlement of any claim out of Court; (d) products manufactured to customer specification cannot be returned for credit. |
| LIEN | |
| 14. | (1)
Without prejudice to any other rights and remedies which the Company
may have, the Company shall in respect of all debts of the Customer
to the Company have a general lien on all tools, goods and other
property belonging to the Customer in the Company's possession (whether
worked on or not). (2) The Company shall be entitled, upon the expiration of 14 days notice to the Customer, to dispose of such tools, goods or property as it thinks fit and to apply any proceeds of sale thereof towards the payment of such debts. |
| INSOLVENCY AND BREACH OF CONTRACT | |
| 15. | If
any of the following events occur, are threatened, or in the opinion
of the Company are reasonably likely to occur:- (a) The Customer shall commit any breach of the contract and shall fail to remedy such breach (if capable of remedy) within a period of thirty days from receipt of no-tice in writing from the Company, requesting such breach to be remedied, or (b) Any distress or execution is levied upon any of the goods or property of the Customer, or (c) The Customer (or where the Customer is a partnership any partner thereof) offers to make any arrangements with or for the benefit of its or his creditors or commits any act of bankruptcy, or (d) The Customer (being a limited company) has a Receiver appointed of the whole or any part of its undertaking property or assets or an order is made or a resolution is passed or analogue proceedings are taken for the winding up of the Customer (save for the purpose of reconstruction or amalgamation without insolvency and previously approved in writing by the Company). The Company shall be entitled (without prejudice to its other rights hereunder) forthwith to suspend further performance of the contract (and any other contract between the Company and the Customer or any unfulfilled part thereof or to make partial supplies of goods. Notwithstanding any such termination the Customer shall pay to the Company for all work done, materials used and goods delivered up to and including the date of termination and shall in addition indemnify the Company against any resulting loss damage or expense incurred by the Company in connection with the non-performance of the contract including the cost of any material plant or tools used or intended to be used therefore and the cost of labour and other overheads including a percentage in respect of profit. |
| SEVERANCE | |
| 16. | If at any time, any one or more of these Conditions (or any paragraph or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted herefrom and the validity and or enforceability of the remaining provisions of these Conditions shall not in any way be af-fected or impaired thereby. |
| WAIVER | |
| 17. | The rights and remedies of the Company shall not be diminished waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting any such rights or remedies. |
| LAW | |
| 18. |
These Conditions and each and every contract made pursuant thereto shall be governed by and construed in all respects in accordance with the Laws of Ireland and the Company and the customer irrevocably submit to the exclusive jurisdiction of the Irish Courts. |
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