Terms and Conditions of Sale
1.1 In these terms (“The Terms”):
a. “the Seller” is Denman International Limited (NI 008800) having its Registered Office at Clandeboye Road, Bangor, BT20 3JH;
b. “the Buyer” is the person, firm or company designated as such in the Contract;
c. “the Goods” shall mean any substance, article or product to be sold by the Seller to the Buyer detailed in the Contract (including any part or parts of them);
d. “the Contract” shall mean any contract between the Seller and the Buyer for the sale and purchase of the Goods, including any estimate or quotation provided by the Seller and which will incorporate these Terms;
e. "the Contract Price" shall mean the price for the Goods to be paid by the Buyer as determined by clause 4.
1.2 In these Terms references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Terms reference to the masculine includes the feminine and the neuter and to the singular includes the plural and vice versa as the context admits or requires.
1.4 In these Terms headings will not affect the construction of these Terms.
2. APPLICABLE TERMS AND CONDITIONS
2.1 Subject to any variation under clause 2.2 the Contract will be on these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document) or in any other way.
2.2 These Terms apply to all of the Seller's sales and no variation or waiver or representations made in respect of or addition to the Terms or otherwise to the Contract shall be binding unless expressly agreed or confirmed in writing by a Sales Director or executive of equivalent status employed by the Seller.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation order, specification or other document or in any other way will form part of the Contract simply as a result of such document being referred to in the Contract or in any other way.
2.4 The Buyer acknowledges it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
3. OFFER AND ACCEPTANCE
3.0 No quotation or estimate issued by the Seller shall constitute an offer to sell the Goods. Any order placed by the Buyer in response to such a quotation shall constitute an offer made to the Seller in accordance with the Terms and the Contract and shall only be binding on the Seller if and when it is accepted by the Seller either in writing or upon the Seller supplying the Buyer with the Goods. It shall be the responsibility of the Buyer to ensure the quantity and description of Goods in the Contract is correct.
3.1 If the Buyer requires the Seller to purchase materials or components that are specific to the Buyer’s requirements then the Buyer will advise the Seller in writing of the quantity of such materials or components to be purchased in line with the contract. If any quantities of these specific materials or components remain unused at the end of the contract then the Seller reserves the right to invoice the Buyer at cost to the Seller for such items. Likewise, if no orders are forthcoming from the Buyer for a period of 12 (twelve) months from the date of the last order which consume these components or materials which have been acquired specifically for the Buyer, then the Seller reserves the right to invoice the Buyer at cost to the Seller for such items.
4.1 The Contract Price shall be the price specified in the Contract subject to the following provisions of this clause 4. Unless otherwise agreed by the Seller in writing the prices for the Goods shall be the prices set out in the Seller's price list published on the date of delivery or deemed delivery.
4.2 Prices which are contained within any estimate or quotation relate only to the stipulated quantities of the Goods the subject of such estimate or quotation and will not necessarily be the same for different quantities.
4.3 The Contract Price shall be exclusive of value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods unless otherwise agreed in writing with the Seller.
4.4 In the event that the Contract Price is identified in a currency other than pounds sterling ("a foreign currency") the Seller reserves the right to adjust the Contract Price should there be any variance in the exchange rate for such a currency at the date of payment from the exchange rate prevailing for pounds sterling and that currency at the date of the Contract (being the date on which the quotation is accepted by the Seller in accordance with clause 3).
5.1 The Contract Price, value added tax and, where applicable, carriage insurance and additional or special packaging is payable net in cash by the 30th day of the month following the month in which the invoice for the Goods is despatched to the Buyer unless otherwise agreed in writing. Interest is payable on any sums outstanding after the due date to the date of payment at a rate of 2% above the Bank of England base rate for the time being in force.
5.2 If any part of the Contract Price due to be paid in accordance with clause 5.1 hereof shall be unpaid for a period of seven days, then the Seller shall have the right to nominate a date upon which the whole balance of all sums owing to the Seller together with all interest of other charges relative thereto shall become payable and service of any notice in accordance with this clause shall make time for payment of the essence of this contract and any other in respect of which payment is due and owing and demanded under this clause. Unless and until all such sums owing are paid to the Seller it shall be at liberty to suspend the performance of all or any of its obligations hereunder. For the avoidance of doubt no payment shall be deemed to have been received from the Buyer until the Seller has received cleared funds.
5.3 The Buyer shall make all payments due under the Contract without any deductions whether by way of set-off, counter-claim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
5.4 All payments payable to the Seller under the Contract shall become due immediately upon termination of this Contract despite any other provision.
6.1 The Seller shall deliver the Goods at the place (if any) named in the Contract or, if none be named, at the Seller's works and the Buyer shall then take delivery within 7 days of being notified that the Goods are ready for collection. Where delivery is to be made otherwise than at its works, the Seller shall convey the Goods to the point nearest to the place of delivery to which there is suitable access and the Buyer shall be responsible for unloading the goods at its own risk. Where delivery is to be made at the Seller’s works the Seller shall, if required, load the Goods onto a vehicle specified by the Buyer at the Buyer's risk.
6.2 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery will be within a reasonable time.
6.3 Any time fixed in the Contract for delivery shall run from the acceptance of order or the date on which the Seller is given such information by the Buyer as necessary to put the work in hand, whichever is the later.
6.4 The Buyer acknowledges and accepts responsibility for any direct, indirect or consequential loss (all three of which include, without limitation, loss of profits, loss of business, depletion, damages, charges or expenses caused directly or indirectly by any delay in delivery even if caused by the Seller's negligence). Delay shall not entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
6.5 The Seller may detail in the Contract that delivery and payment shall be made by instalments in which event each instalment shall be deemed to be sold under a separate contract incorporating each such separate contract in the main Contract and no cancellation or termination of any one contract relating to an instalment shall entitle the Buyer to repudiate or cancel the Contract.
6.6 The Seller shall have the right to effect delivery by whatever means and by whatever route it shall select unless otherwise agreed with the Customer.
6.7 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:-
(a) risk in the Goods will pass to the Buyer (including for loss or damage caused by the Seller's negligence);
(b) the Goods will be deemed to have been delivered; and
(c) the Seller may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
6.8 If the Seller delivers to the Buyer a quantity of Goods up to 5% more or less than the quantity accepted by the Seller, the Buyer shall only be entitled to object or reject the Goods or any of them by reason of the surplus or shortfall if it notifies the Seller of such surplus or shortfall within 7 days from the date of delivery. If the Buyer fails to notify the Seller within the requisite 7 day period then it shall pay for such Goods at the pro rata Contract rate.
7.1 The quantity of any consignment of Goods as recorded by the Seller upon despatch from the Seller's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
7.2 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller's negligence) unless written notice is given to the Seller within 7 days of the date when the Goods would in the ordinary course of events have been received.
7.3 Any liability to the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised.
Goods will be packed in accordance with the Seller’s normal practice unless otherwise agreed in writing. The Buyer will be charged with any such additional or special packing costs.
9. ACCEPTANCE OF THE GOODS
9.1 The Buyer shall inspect the Goods immediately upon delivery. Acceptance shall automatically take place if the Buyer either uses the Goods or retains the Goods for 14 days from the date of delivery without giving the Seller written notice of any complaint in respect hereof, the Buyer shall not be entitled to reject the Goods unless:-
(a) it has given the Seller written notice of rejection within 14 days from the date of delivery; and either
(b) the Seller has inspected the Goods, such inspection to be made within 60 days of the receipt of such notice; or
(c) 60 days shall have elapsed from the receipt of such notice.
10. RETENTION OF TITLE
10.1 Until full payment (in cash or cleared funds) has been received by the Seller for all Goods supplied to the Buyer under this or any other Contract, between the Seller and the Buyer:-
(a) ownership of the Goods shall belong to the Seller;
(b) the Buyer shall, subject to (c) below, be at liberty to resell the Goods in the ordinary course of business at full market value and any such sale shall be a sale of the Seller's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale;
(c) the Seller may at its option by notice in writing revoke the liberty of resale in (b) above;
(d) the Buyer’s right to possession of the Goods shall terminate immediately if:-
(i) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of Articles 186-188 (inclusive) of the Insolvency (Northern Ireland) Order 1989 or the Buyer ceases to trade; or
(iii) any event analogous to the event detailed at (i) and (ii) above occurs in respect of the Buyer in any foreign jurisdiction; or
(iv) the Buyer encumbers or in any way changes any of the Goods.
(e) upon determination of the Buyer’s liberty to resell under (c) above the Buyer shall place the Goods at the Seller’s disposal and the Seller shall be entitled to enter upon the Buyer’s premises for the purpose of removing the Goods;
(f) the Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them;
(g) until ownership of the Goods has passed to the Buyer, the Buyer must:
(i) hold the Goods on a fiduciary basis as the Seller’s bailee;
(ii) store the Goods (at no cost to the Seller) separately from all other Goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller's property;
(iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(iv) maintain the Goods in satisfactory condition.
10.2 The Seller shall be entitled to recover payment of the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
The Goods shall be at the Buyer’s risk from the time of delivery. The Buyer shall fully insure the Goods against all risks from that time with a reputable insurance company at its own expense and shall produce the policy of insurance so effected together with the receipt for the current premium to the Seller on demand. The insurance shall cover the Seller’s interest in the Goods; the Buyer shall hold all monies paid under such insurance in trust for the Seller and shall pay the same to the Seller on demand.
(a) Force Majeure
If by any reason of any circumstances whatsoever beyond the Seller’s control, including (but not without prejudice to the generality of the foregoing) war, terrorism, protests, riots, civil commotion, strikes, lockouts, floods, fire explosions, requisitions, Acts of God or other labour disputes, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal sources and routes of supply the Seller shall be unable to comply with all or any of its obligations under the Contract it may either cancel the contract in respect of the Goods affected, and any contractual obligations in respect of those Goods shall be wholly discharged and the Seller shall not be liable for loss damage or costs caused by any such contingency, or vary any relevant terms of the Contract by mutual written agreement with the Buyer in accordance with Clause 2.
(b) If the Buyer shall fail to make any payment when it becomes due or shall be subject to any change of control or shall enter into any composition or arrangement with creditors or (being an incorporated company) shall have the receiver appointed or shall pass a resolution for winding-up or if a Court shall make an order to that effect, or (not being an incorporated company) it shall have a receiving order made against it or if any event analogous to the foregoing events occurs in respect of the Buyer in any foreign jurisdiction or, if there shall be any breach by it of any of the terms hereof, the Seller may by notice in writing and without prejudice to its other rights and remedies, defer or cancel any further deliveries to the Buyer or determine the Contract.
13. PATENT INFRINGEMENT
The Buyer shall indemnify the Seller against all actions, costs (including the cost of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, unregistered design, design right, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Seller with the Buyer’s instructions, whether express or implied.
14. WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT REGULATIONS (WEEE).
As a condition of sale, where producer responsibilities for Electrical & Electronic Equipment (EEE) apply to Denman International Limited, these obligations are passed on to the buyer when this EEE is discarded as waste electrical and electronic equipment(WEEE).
15. CONSEQUENTIAL LOSS OR DAMAGE
15.1 This clause 15 sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:-
(a) any breach of these Terms;
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract; and
(c) any use made or resale by the Buyer of any of the Goods, or any product incorporating Goods and any disputes or claims arising out of or in connection with it.
15.2 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.
15.3 Nothing in these Terms excludes or limits the liability of the Seller for death or personal injury caused by the Seller's negligence or fraudulent misrepresentation.
15.4 Subject to Clause 15.2 and 15.3:-
(a) the Seller'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 this Contract shall be limited to the Contract Price; and
(b) the Seller shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
16.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent:by email provided that proof of delivery is evident and the email addresses have been agreed between the parties:-
(a) (in case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Seller by the Buyer.
16.2 Communications shall be deemed to have been received:-
(a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery; or
(c) if a valid email receipt is received by the sender from the receiving party and that the email address used is one that has been agreed between the parties as valid for communication .
16.3 Communications addressed to the Seller shall be marked for the attention of the Sales Director.
17.1 The Contract or any part of it is neither transferable nor assignable by the Buyer without the prior written consent of the Seller such consent not to be unreasonably withheld or delayed.
17.2 The Seller may assign the Contract or any part of it to any person, firm or company.
18. CLERICAL ERRORS
The Seller reserves the right to correct any clerical errors which may be discovered.
19.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
19.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
19.4 Any waiver by the Seller in enforcing of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
19.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
20. GOVERNING LAW AND JURISDICTION
The formation, existence, construction, performance, validity and all aspects of the Contract and any disputes or claims arising out of or in connection with it shall be governed by the laws of Northern Ireland and the parties hereto agree to submit to the exclusive jurisdiction of the Courts of Northern Ireland.