Terms & conditions
(1.1) These conditions shall form part of all Contracts for the supply of goods and services by www.TieArt.net and/or Stuart Campbell (hereinafter called “the Company”) to any other person, persons or body corporate (hereinafter called “the Customer”).
(1.2). The headings contained in these General Conditions of Sale are inserted for ease of reference only and they do not in themselves form part of these Conditions of Sale of any Contract.
(1.3) Any Order shall not be binding on the Company unless, and until, such Order shall have been accepted by the Company in writing. The placing of any Order implies acceptance of the following terms and conditions , upon which alone such an order is accepted and no purported term or condition introduced by the Customer, which is inconsistent with any of these conditions, shall have any effect and these conditions alone shall, in all circumstances prevail.
(1.4) Any alterations to these conditions are to be made in writing, duly signed by the Company and the Customer.
(1.5). If any statement or representation has been made to the Customer by the Company, its servants or agents upon which the Customer relies other than in the documents enclosed with the Company’s quotation or acknowledgement of order then the Customer’s must set out that statement or representation in a document to be attached to or endorsed on the order and in any such case the Company must confirm, reject or clarify the point and submit a new quotation.
(1.6) The Company’s employees or agents are not authorised to make any representations concerning the goods or services, unless confirmed by the Company in writing. In entering into the Contract, the Customer acknowledges that it does not rely on and waives any claim or breach of any such representation which are not confirmed as aforesaid.
(2.1) All prices are unless otherwise stated quoted net exworks exclusive of VAT and are subject to fluctuation in the event of any increase in the cost to the Company, which is due to any factor beyond the control of the Company such as (without limitation) any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of labour due to local or national awards or otherwise or increase of the costs of materials, overheads or other costs of manufacture, any change in delivery dates, quantities or specifications for the goods/or services which is requested by the Customer or any delay caused by any instruction of the Customer or failure of the Customer to give the Company adequate information or instructions, any increase in such costs during the period of the contract will be added to the quoted price.
(2.2) In the event of any alteration being requested by the Customer and agreed by the Company in design or specification the Company shall be entitled to make an adjustment of the contract price corresponding to such alteration.
(2.3) The cost of carriage and packaging shall unless otherwise stated or agreed by the Company be charged extra and is not refundable.
(2.4) All the Company’s clerical errors are subject to correction.
(3.1) The acceptance of the Company’s tender or quotation must be accompanied by sufficient information to enable the Company to proceed with the Order forthwith otherwise the Company shall be at liberty to amend the tender prices to cover any increases in cost which have taken place after acceptance and also to amend any estimated delivery date resulting from such delays. Any samples submitted to the Customer and not returned to the Company’s works within one month from date of receipt shall be paid for by the Customer.
4. SCOPE OF CONTRACT
(4.1) The Company’s tender includes only such goods and services as are specified therein. The Company shall sell and the Customer shall buy the goods and services on the terms and conditions of the contract. The Contract contains the entire agreement between the parties relating to the sale of the goods and services and supersedes all prior written or oral communications between the Company and the Customer.
5. CONFIDENTIAL INFORMATION
(5.1) All drawings, designs, documents confidential records and other information supplied by the Company are to be supplied on the express understanding that copyright is reserved to the Company and that the Customer will not without the written consent of the Company either give away loan exhibit or sell any such drawings, designs documents records or other information or extracts therefrom or copies thereof or use them in any way except in connection with the goods in respect of which they are issued.
(5.2) The Customer undertakes to regard as confidential all information communicated to him and shall not disclose it or make it available to any third person or entity without the prior written consent of the Company.
6. DRAWINGS , DESIGNS AND SPECIFICATIONS
(6.1) All specifications, designs, drawings, particulars of weights, dimensions and quantities accompanying the Company’s tender must be regarded as approximate only and small deviations therefrom shall not vitiate the Contract or be made the basis of any claim against the Company. Errors and omissions are subject to correction. The descriptions and illustrations contained in the Company’s catalogue, price lists and other advertisement matter are intended to present a general idea of the goods and services described therein and are approximate only. None of these shall form part of the Contract unless stated to be so in the Company’s tender.
(6.2) Samples of goods and/or specifications mentioned in the Company’s catalogue and any other printed matter may have indicative value. The Company will have the right to bring about any modification of shape, design, dimension or material even after the Company’s acceptance of the order, but in no case shall the essential characteristics of the product be affected.
Without prejudice to the generality of any provision of Clause 6 hereof, no objection shall be raised by a Customer in respect of any customary or technically unavoidable imperfections as to quality, width, length, design, colour, finish, proportion or weight of the constituents and/or materials of the goods or the goods themselves or any other variation from the specifications or sample, but in no case shall the essential characteristics of the product be affected.
(6.3) The Customer shall be solely responsible for ensuring that all drawings, designs, information, advice and recommendations given to the Company either directly or indirectly by the Customer or by the Customer’s agents, servants, consultants or advisers are accurate, correct and suitable. Examination or consideration by the Company of such drawings , designs, information, advice or recommendations shall in no way limit the Customer’s responsibility hereunder unless the Company specifically agrees in writing to accept responsibility.
(6.4) The Customer shall indemnify the Company form and against all actions, claims, costs and proceedings which arise due to the manufacture of goods to the drawings, designs or specifications of the Customer where such drawings, designs or specification are at fault or where it is alleged that they involve an infringement of a patent copyright registered design or design copyright of other exclusive right.
(7.1) Before the Customer becomes entitled to claim liquidated damages or to reject the goods or services the Company is to be given reasonable time and opportunity to rectify their performance or their goods. If the Customer becomes entitled to reject the goods or services, the Company will repay to the Customer any sum paid by the Customer to the Company on account of the contract price thereof. The Customer assumes responsibility that goods or services stipulated by the Customer are sufficient and suitable for the Customer’s purpose save insofar as the Customer’s stipulations are in accordance with the Company’s advice.
8. LIABILITY FOR DELAY
(8.1) The Company will use it’s best endeavours to despatch by the date quoted and the Company will not accept any liability for failure to do so. Should despatch be hindered or delayed by the Customer’s instructions or lack of
instructions or by any cause whatsoever beyond the Company’s reasonable control (including strikes, lock-outs, industrial disputes of any nature, fire, accidents, defective materials or delay in delivery of materials by a third party after due and timely diligence to obtain any material or part not of the Company’s manufacture to be incorporated in the equipment) a reasonable extension of time shall be granted.
(9.1) Unless otherwise specified in the Company’s tender, the price includes normal packing and is quoted exworks. An additional charge will be applied for seaworthy packing. Packing materials are non-returnable.
(10.1) Goods and services, properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport shall be delivered by the Company at, or despatched for delivery to, the place or places and in the manner specified in the order or as subsequently agreed.
(10.2) Any times quoted for completion, delivery or despatch are to be computed from the date specified for that purpose in the order. The Company will use its best endeavours to keep to the time so computed, but such times are not to be considered as being of the essence of the Contract, nor involving any contractual obligation on the Company’s part.
(10.3) Unless otherwise specified in the Company’s tender, prices quoted are exworks Dublin.
(10.4) The Company will not be responsible for unloading or for any damage thereby occasioned.
(10.5) Where delivery of the goods is to be made by the Company in bulk, the Company, whilst using all reasonable endeavours to deliver an accurate quantity of goods, reserves the right to deliver up to 10% more or 10% less than the quantity stated on the Order Form, so accepted by the Company, with an appropriate proportionate adjustment in the price and the quantity so delivered shall be deemed to be the quantity so ordered.
(10.5) Risk shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the goods:-
(i) If the Company delivers the goods by its own transport or in accordance with a specific contractual obligation arranges transport for the goods at the time when the goods or a relevant part thereof arrive at the place of delivery, or
(ii) In all other circumstances at the time when the goods or a consignment or other part thereof leave the premises of the Company.
(10.6) Where the goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the contract as a whole as repudiated.
(11.1) Where it is acknowledged by both parties that goods or services supplied do not comply with the Contract such goods or services may be rejected within seven days of receipt by the Customer.
(11.2) Rejection shall be by notice in writing to the Company specifying the reasons therefore and the Customer shall thereafter return the rejected goods or services to the Company at the Company’s risk and expense. In such cases the Company shall within a reasonable time replace such rejected goods or services with goods or services which are in all respects in accordance with the Contract.
(11.3) Any money paid by the Customer to the Company in respect of any rejected goods or services not replaced by the Company within a reasonable time shall be repaid by the Company.
(11.4) The Customer shall have no claim for shortages or defects apparent on visual inspection unless:
- (i) The Customer inspects the goods within three (3) working days of arrival at its premises or other agreed destination and
- (ii) A written complaint is made to the Company within seven (7) days of receipt of the goods or such shorter period as the carriers conditions (if applicable) require specifying the shortage of defect and
- (iii) The Company is given an opportunity to inspect the goods and investigate any complaint before any use of or alteration is made of or to the goods or before the goods are intefered with.
12. LOSS OR DAMAGE IN TRANSIT
(12.1) When the price quoted includes delivery other than at the Company’s works, the Company will repair at the Company’s option replace free of charge goods or services lost or damaged in transit. Provided that the Company is given written notification of such loss or damage within such time as will enable the Company to comply with the carriers conditions of carriage as affecting loss or damage in transit or, where delivery is made by the Company’s own transport within a reasonable time after receipt of the Advice Note and provided further that the Customer gives the Company full co-operation in making claims against carriers for such loss or damages.
(13.1) The Company will make good, by repair or rectification or at the Company’s option by the supply of a replacement, defects which, under proper use, appear in the goods or services within a period of two (2) calendar months after the goods or services have been delivered or performed and arise solely from faulty design (other than a design made furnished or specified by the Customer for which the Company has disclaimed responsibility in writing), materials or workmanship. PROVIDED ALWAYS that the defective goods have been returned to the Company if the Company shall have so required. The Company shall refund the costs of carriage on such returned goods and the repaired or new parts will be delivered by the Company free of charge as provided in Clause 11 (Delivery). The Company’s liability under this clause shall be in lieu of any warranty or condition implied by law as to the quality of fitness for any particular purpose of the goods and services, and save as provided in this clause the Company shall not be under any liability whether in Contract, Tort or otherwise, in respect of defects in goods or services delivered or performed or for any injury, damage or loss resulting from such defects or from any work done in connection therewith.
(13.2) The Customer shall have no claim in respect of defects not apparent on visual inspection at the time of deliverly unless:
- (I) A written complaint is sent to the Company as soon as reasonable practicable after the defect is discovered and no use is made of the goods thereafter and no alteration made thereto or interference made therewith before the Company is given an opportunity to inspect the goods in accordance with this condition and
- (ii) The complaint is sent within two(2) months of the date of delivery of the goods or in the case of an item not manufactured by the Company within the guarantee period specified by the manufacturer of such item.
- (iii) The Company shall not be liable for loss or damage suffered by reason of use of the goods after the Customer becomes aware of a defect or after circumstances which should reasonably have indicated to the Customer the existence of a defect.
14. RETURN OF GOODS
(14.1) No goods or services supplied pursuant to your order may be returned for any reason without first obtaining our written permission, and all transportation charges shall be prepaid by the Customer. Any cost incurred by the Company to put equipment in first class condition as a result of damage during transportation will be charged to the Customer. The returned goods or services must be carefully packed in their original packing so as to reach the Company without damage. In no case shall a credit note justify delay in the payment of the principal of the invoice.
15. TERMS OF PAYMENT
(15.1) Payment shall be on delivery except when credit or other terms have been agreed.
(15.2) No disputes arising under the contract nor delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Customer.
16. FAILURE TO PAY
(16.1) Failure on the Customer’s part to pay in accordance with the terms of the Contract for goods or services delivered shall entitle the Company (without prejudice to any other remedy the Company may have) to withhold further deliveries both in respect of the Contract or series of Contracts in question and any other Contract for delivery of goods or services to the Customer or to any subsidiary parent or any other Company with which the Customer may be associated either at the same time or subsequently until such payment has been made but the Customer shall in such event also be liable to the Company for the cost of all materials and work in connection with manufactured or partly manufactured articles acquired or made by the Company for the purpose of future deliveries to the Customer less an allowance for the value thereof as realised or as utilised by the Company for other purposes. In addition thereto the Company shall have the right to charge compound interest on payments overdue at the rate of five percent above the interest rate charged by members of the Associated Banks in the Republic of Ireland on overdrafts of AAA Customers or if no such rate
the nearest similar rate of interest from day to day and to accrue after as well as before any Judgment and irrespective of the expiration or sooner determination of this contract or alternatively a rate of 20% whichever shall be the higher.
(16.2) Without prejudice to the generality of the foregoing, if the Customer pays for the goods by way of cheque and in the event that after presentation by the Company to the Customer’s Bank, the cheque is returned to the Company unpaid or uncashed for whatever reason, the Customer shall pay to the Company the sum of Twenty-Five Pounds , in addition to the price of the goods and interest (if applicable) and the Customer acknowledges and agrees that the said sum of Twenty-Five Pounds shall be charged to the Customer’s account.
17. FORCE MAJEURE
(17.1) Deliveries of goods or services may be totally or partially suspended by the Company during any period in which the Company may be prevented or hindered from obtaining, manufacturing, supplying or delivering the same through any circumstances beyond the Company’s reasonable control including (without prejudice to the generality of the foregoing words) inability to obtain products, materials, actions of enemies of the State, actions of Forces in the State, Civil Commotion, accidents, plant breakdowns, interference by labour or strikes or lock-outs of employees, acts of God or any restrictions, regulations, orders, acts of omission or operations by Local Authority or Government Department.
(17.2) If by reason of any such circumstances the Company is unable to supply the total demand for the Company’s product the Company may allocate its available supply among all the Customers on what the Company adjudges to be an equitable basis.
18. INSOLVENCY ADMINISTRATIVE RECEIVER
(18.1) If the Customer shall become bankrupt or insolvent or compound with its creditors or in the event of a resolution being passed or proceedings commenced for the liquidation of the Customer (other than for a voluntary winding up for the purpose of reconstruction or amalgamation) or if an administrative receiver is appointed to all or any part of its assets or undertaking or if a petition shall be presented to the Court for the appointment of an administrator in relation to the Customer the Company shall be entitled to cancel the contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to the Company.
(19.1) The Company will not be responsible for any loss, damage or deterioration in the goods.
(19.2) The Company assumes no responsibility whatsoever or liability for repairs to the goods not made in the Company’s factory or by the Company’s personnel without written consent. In no case shall the Company be responsible or liable in any way for consequential loss or damage or loss of profits or any other claim whatsoever in respect of goods not of the Company’s manufacture or goods which have suffered any modification whatsover.
(19.3) In the event of the condition of the goods being such as might or would (subject to these conditions) entitle the Customer to claim damages or to repudiate the contract the Customer to claim damages or to repudiate the contract the Customer shall not then do so but shall first ask the Company to repair or supply satisfactory substitute goods and the Company shall thereupon be entitled at its option to repair or take back the defective goods and to supply satisfactory substitute goods free of cost and within a reasonable time. If the Company does so repair the goods or supply satisfactory substitute goods the Customer shall be bound to accept such repaired or substituted goods and the Company shall be under no liability in respect of any loss or damage whatsoever arising from the initial delivery of the defective Goods or from the delay before the defective goods are repaired or the substitute goods are delivered.
20. CONSEQUENTIAL LOSS
It is hereby mutually agreed between the parties that the Company shall not, in any circumstances, whatsoever, be liable for any claim whatsoever made by the Customer or any third party for consequential loss or damage or for loss of profits in respect of any goods and services supplied under this Contract or in respect of any breach of the terms of this Contract including, without limitation, inter alia, any economic or other loss of turnover, profits, business or goodwill.
21. PASSING OF PROPERTY
(21.1) The Customer expressly agrees, that until the Company has been paid in full for the goods or services comprised in this or any other Sale Contract between the parties hereto the following conditions shall apply:
- (i) The goods or services shall remain the Company’s property.
- (ii) The Company reserves the right to dispose of the goods or services until payment in full for all of the goods has been received by the Company in accordance with the terms of this contract or until such time as the Customer sells the goods or services to its customers by way of bona fide sale at full market price.
- (iii) If the payment due to the Company under this Agreement is over-due in whole or in part the Company may (without prejudice to any of the Company’s other rights) recover or re-sell the goods or services or any part of them and may enter upon the Customer’s premises personally or through the Company’s servants or agents for that purpose.
- (iv) Such payments shall become due immediately upon the commencement of any act or proceedings in which the Customer’s solvency is involved.
- (v) Notwithstanding anything hereinbefore provided the Customer has the right to dispose of the goods or services or such other products in the course of the Customer’s business for the Company’s account and to pass a good title to the goods to a customer being a bona fide purchaser for value without notice of the Company’s rights.
- (vi) In the event of such disposal the Customer has the fiduciary duty to the Company to account for the proceeds of the sale, but may retain therefrom, any excess of such proceeds over the amount outstanding under this or any other Sale Contract between the parties hereto.
- (vii) Until the property and the goods or services has passed from the Company the Customer shall ensure that the goods or services and any products in which they are incorporated are kept in good condition and repair and shall keep such goods or services and products insured against all risks to their full replacement cost under a policy which provides for all monies payable thereunder to be paid to the Company as agent for the Customer for the purpose of satisfying from such monies any such outstanding claims by the Company against the Customer and paying the balance (if any) to the Customer.
- (viii) The Customer shall store the goods or services so as to clearly show them as being part of the Company’s property.
- (ix) At the Company’s request the Customer shall furnish the Company with the names and addresses of the debtors, sub-purchasers and all appropriate particulars thereof so as to enable the Company to recover such sums owing from such sub-purchasers.
- (x) Without prejudice to the generality of Clause 21 hereof, if the Company exercises it’s right to recover the goods and the said goods were made to the specific requirements of the Customer and/or if the said goods are “out of fashion” at the time of repossession of the goods by the Company, then in addition to the Customer furnishing possession of the goods to the Company, the Customer shall also be liable in full for the difference in value between the value of the goods at the time of repossession by the Company (if any) and the invoiced value of the goods together with interest, if applicable. The Company’s determination of the value of the goods at the time of repossession and the Company’s determination as to whether or not goods are “out of fashion” shall be final and binding on both parties.
(22.1) Any Notice required or permitted to be given by the other party to the other under these Terms and Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
(23.1) No Waiver by the Company of any breach of the Terms and Conditions herein shall be considered as a waiver of any subsequent breach of the same or any other provision.
(24.1) If any provision of these Terms and Conditions is held by any Court to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
25. LEGAL CONSTRUCTION
This Agreement shall be governed by and interpreted in accordance with the laws of Ireland and the Company and the Customer hereby submit to the jurisdiction of the Irish Courts.