Terms and Conditions of Sale
Terms of Sale
“Seller” means Dellner Romag Limited
“Buyer” means the person or firm to whom it is agreed the Goods are to be sold;
“Goods” means the goods the subject of the contract;
“Due Date” means the date 30 days after the date of the Seller’s invoice for the Goods or the date on which any of the events in General Condition 20 shall occur, whichever is the earlier.
“the Special shall mean the terms and conditions (in addition to the General Conditions) set out overleaf or in the Seller’s Documentation Conditions” or otherwise in writing signed by a duly authorised representative of the Seller;
“the General shall mean these Conditions of Sale as from time to time amended by the Seller and which shall apply to all contracts for the Conditions” sale or supply of Goods by the Seller;
“the Contract” shall mean the Contract on the terms of these General Conditions and (if any) the Special Conditions for the sale or supply by the Company to the Buyer of any Goods.
The Contract is constituted by the Seller’s acceptance, whether by the Seller’s Acceptance Documentation or otherwise, of the Buyer’s order. No estimate or quotation given by the Seller forms part of the Contract.
(a) The Seller’s quotation is without engagement on its part and is subject to written confirmation by the Seller of its acceptance of the Buyer’s order. Quotations are subject to withdrawal at any time before the Seller’s written confirmation of acceptance is given to the Buyer and shall be deemed to be withdrawn unless so accepted within 30 days from their date.
(b) All quotations are given and all orders in whatever terms are accepted subject to these terms and conditions which no person save a director of the Seller has power to vary, and which supersede any terms appearing in the Seller’s catalogue or elsewhere, and override and exclude any other terms stipulated or referred to by the Buyer. Previous dealings between the parties shall not vary or replace these terms nor be deemed in any circumstances to do so. Acceptance of the Goods by the Buyer shall be conclusive evidence before any court of law or arbitrator. All orders hereafter made by the Buyer shall be deemed to be made subject to these General Conditions.
(a) All prices are net cash prices exclusive of VAT or any similar taxes, levies or duties which will be charged at the rate applicable when invoiced.
(b) All prices are quoted on the understanding that the whole of the Goods quoted for will be ordered and supplied.
(c) All prices are (unless otherwise agreed) subject to variation at any time to reflect corresponding variations in the Sellers own costs of materials, fuel, labour and transport, and the Seller reserves the right to increase the price of the goods before delivery to that ruling at the date of despatch.
4. Settlement of Accounts
(a) Unless otherwise agreed in writing accounts are due for settlement on the Due Date. Payment shall not be delayed on account of the absence of an architect’s certificate and the Buyer shall have no right to set off against any payment due.
(b) If payment is not made by the Due Date the Seller shall have the right to charge interest at a rate of 2% per month from the Due Date of final settlement as well as before and after any judgement.
(a) The Seller will make good, by repair or at the Seller’s option by the supply of a replacement defects which under proper use appear in such part of the Goods as are of the Seller’s manufacture within a period of 12 months after the date of delivery and which arise solely from faulty materials or workmanship provided always that defective goods are promptly returned by the Buyer carriage paid to the Seller’s works and become the property of the Seller if replaced. At the termination of the said period of 12 months all liability on the part of the Seller shall cease. The Seller shall not be liable under this Warranty or otherwise for any direct or indirect loss whatsoever arising out of any defect in the Goods or any part thereof.
(b) The Buyer’s rights under this warranty are subject to and conditional upon observance of the following conditions:
(i) the warranty shall not be assigned or transferred unless the Seller’s consent in writing has first been obtained;
(ii) the Seller shall be notified at the time of the defect is discovered and shall be given an opportunity to examine the Goods concerned before they are removed from the operating location.
(c) This warranty will not affect the statutory rights of consumers.
6. Reservation of Title
(a) The ownership of the Goods shall remain with the Seller until payment in full for the Goods has been received by the Seller in accordance with the terms of this Contract, or at the Seller’s option until payment has been made of all other sums owing to the Seller by the Buyer at the date of this Contract on any account whatsoever and howsoever arising.
(b) While the ownership of the Goods remains with the Seller the Buyer shall store them upon his premises separately from his own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Seller. Risk in the Goods passes to the Buyer as soon as the Goods are ready for off loading at the Buyer’s premises in accordance with General Condition 9.
(c) If any payments due hereunder are overdue in whole or in part the Seller may (without prejudice to its other rights) recover or resell the Goods or any part of them and may enter upon the Buyer’s premises (or such other premises where the Goods are stored) by its servants or agents for that purpose.
(d) The Buyer shall ensure that the Goods are not incorporated in or mixed with or used as part of other goods (“New Goods”) before payment for the Goods has been made to the Seller although in such incorporation or mixing shall take place the property in those Goods which remain identifiable and/or severable from such New Goods shall be and remain with the Seller until payment has been made or the New Goods have been sold as aforesaid and all the Seller’s rights hereunder in the Goods shall extend to the New Goods and to the proceeds of sale thereof, which shall be held by the Buyer in accordance with the sub-clause (e) hereof.
(e) The Buyer shall not be at liberty to sell on the Goods before effecting payment therefore to the Seller unless such on-sale is at a price not less than the price agreed between the Seller and the Buyer. If any of the Goods shall be sold by the Buyer before payment for them has been made that part of the proceeds of sale which represents or is equivalent to the amount owed by the Buyer to the Seller shall be held by the Buyer upon trust for the Seller and shall be paid into a separate bank account designated for that purpose. The Seller shall be entitled to trace the proceeds of any such sale(s) into the said bank account and the Buyer hereby authorises the Seller to make enquiries of its bankers relating to such proceeds.
(f) The Buyer or any director(s) thereof shall not apply to the Court under section 9(1) of the Insolvency Act 1986 for the appointment of an administrator without giving 14 days notice to the Seller. From the date of the said notice the Buyer shall not be entitled to remain in possession of any of the Seller’s goods and the Seller may recover or resell the Goods and enter upon the premises where the Goods are stored in accordance with the sub-clause (c) above. The appointment of an administrator without the aforesaid notice shall be deemed to be a fundamental breach of contract.
(g) If a trustee in bankruptcy, trustee under a deed of arrangement, supervisor, receiver, administrative receiver or liquidator (hereinafter called an “Officeholder” which term includes joint officeholders) shall be appointed to the Buyer and at the time thereof the Buyer shall not have received the proceeds of sale, the Buyer or the Officeholder, as agent for the Buyer, shall assign to the Seller within 7 days all rights against the person or persons to whom the Goods have been sold or agreed to be sold.
(h) If an Officeholder as aforesaid or any other person acting for the Buyer fails on demand to return any Goods for which payment in full has not been made to the Seller, he shall pay the Seller as agreed and liquidated damages for wrongful interference, double the invoice price of the Goods; and if an Officeholder shall fail to assign to the Seller any rights against a third person as required by sub-clause
(g) hereof, he shall be liable to pay to the Seller interest on the unpaid invoiced price at the rate of 15% per annum until the Seller shall receive the whole of the monies due.
(i) Any failure by the Seller to require a separate account under the sub-clause (d) and/or (e) above shall not constitute a waiver or variation of its rights under this clause 6.
(j) Each of the foregoing sub-clauses shall so far as the context thereof permits be read and construed independently of the other sub-clauses so that if one or more should be held to be invalid for any reason whatsoever then the remaining sub-clauses shall be valid to the extent that they are not held to be so invalid.
7. Urgent Orders
An additional charge may be made and if so will be notified to the Buyer at the time of acceptance of the order if the urgency of an order can only be met by additional costs labour, material or carriage.
The Buyer may not cancel a contract without the consent of the Seller, which if given shall be deemed to be on the express condition that the Buyer shall indemnify the Seller against all loss, damage, claims or actions arising out of such cancellation unless otherwise agreed in writing.
(a) Delivery to the Buyer will be in accordance with instructions given and the Seller may at its sole discretion make such additional charges as are fair and reasonable in respect of such delivery.
(b) Whenever possible Goods will be delivered by road vehicle to the Buyer’s warehouse or works. Additional carriage charges in accordance with rates current at the time of despatch may be applied if special delivery arrangements (e.g. packed consignments to destinations other than to the Buyer’s normal warehouse or works, to remote areas, or in small batches) are required.
(c) The Seller will deliver goods within the standard intolerances stated within the Seller’s literature.
(d) Where delivery is effected by the Seller it will be deemed to have been completed when the Goods are ready to be off-loaded at the place of delivery. Off-loading shall be the entire responsibility of the Buyer, and the Seller accepts no liability for damage to the Goods during off-loading.
(e) Where delivery is undertaken by the Seller any complaint in respect of short delivery or for damaged goods must be notified within 3 days of receipt and confirmed in writing at that time and any claim for non-delivery must be made within fourteen days of invoice date.
(f) The Buyer must examine the goods before signature of any packing note and failure by the Buyer to express dissatisfaction with the Goods having given a clear signature for them will disentitle the Buyer from making any claim against the Seller or the carrier in respect of any damage to the Goods.
10. Delivery Dates
(a) The Seller will use its best endeavours to despatch goods by the time arranged, but all delivery dates are estimates only and the time of delivery shall not be of the essence of the contract. The Seller will not be liable for any loss, damages or expenses sustained by the Buyer in consequence of failure to deliver by the estimated date or in consequence of any delay in delivery howsoever caused.
(b) If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are delivered or are ready for delivery the Seller will, if its storage facilities so permit and at its sole option, store the goods until actual delivery and the Buyer shall pay to the Seller the cost of such storage, including any additional handling and transport costs. This provision shall be in addition to and not in substitution for any other payment or damages for which the Buyer may become liable due to his failure to take delivery at the appropriate date.
(c) If the manufacture, delivery or supply of Goods or services shall be delayed as a result of circumstances beyond the control of the Seller, the obligations of the Seller shall be suspended for so long as such circumstances prevail. By way of illustration only and without limiting the generality of the foregoing, such circumstances include war, civil commotion, strikes, lock-outs, industrial dispute, shortage of materials, fuel or labour, failure of plant, acts of competent authority, fire and the elements whether affecting the Seller directly or any supplier to or haulier for the Seller. Should any delay continue for more than four months, the Seller may terminate the contract by notice to the Buyer, but the Seller in no circumstances be liable to compensate the Buyer in damage or otherwise for late delivery or non-delivery of the Goods or any of them for whatever reason for any loss consequential or otherwise arising therefrom.
(a) All sizes are quoted in metric measurements. Imperial sizes will be translated to the nearest metric equivalent.
(b) Glass panes not exceeding 0.25 m² will be charged at 0.25 m².
(c) All prices are for clean rectangles.
(d) Ovals, circles or irregular shapes will be charged the full size of the rectangular pane from which they are cut.
(e) Notches and cut-outs, edgeworking or drilling will be charged in addition.
(f) On all orders, for the purpose of pricing, each measurement of less than 5 mm will be rounded down and of 5 mm or more will be rounded up to the nearest centimetre.
(a) Unless specified and with the exception of the backing glass used for low spall glasses, all glass shall be of float quality.
(b) The Seller will not accept a Buyer’s own glass for laminating without prior written agreement but if such an agreement is made the Seller accepts no responsibility for accidental breakages when handling or working the Buyer’s own glass.
(c) All goods supplied by the Seller are supplied on the basis that they are not required for any special purpose different from the usual purpose for which such goods or services are supplied and the Buyer shall be deemed to have full knowledge of the nature and properties of the Goods supplied and any hazards they involve and the proper treatment, storage and handling thereof. In particular Goods are supplied on the basis that they shall be used in normal conditions appropriate for such Goods and shall be properly maintained. Guidelines for handling, storing and installation of the glass are available from the Seller.
If a Buyer orders goods to be supplied to a template and the template dimensions differ from those specified in associated documents or correspondence or verbal instructions the order will be executed to the dimensions of the template, and the Seller accepts no liability for any such difference or variation. Buyer’s templates must always be of hardboard.
14. Specification and Information
(a) Where the Contract provides that the Seller is to supply, manufacture or perform Goods to the Buyer’s specification the Buyer shall be under an obligation to provide the Seller with sufficient accurate information, drawings and the like to enable the Seller to perform the Contract. The Seller shall not be liable for any defect in such Goods which arises out of any failure or defect in the design or specification and the warranty hereinbefore contained shall not apply to such Goods.
(b) The Seller shall not be under any liability in respect of descriptions, specifications, weights or dimensions or other matters in relation to Goods contained in any material such as forwarding specifications, drawings, price lists, catalogues, trade publications and advertising matters, other than in the Contract itself.
(c) The Seller’s policy is one of continuous improvement. It therefore shall be entitled without notice (save where the Seller is working to the Buyer’s specification as provided in (a) above in which case it shall consult with the Buyer) to make changes in dimensions, materials and designs which it thinks reasonable or desirable without affecting the validity of the contract. The Buyer shall have no cause of action in respect of any such change.
It is the Buyers responsibility to scrutinise order acknowledgements to ensure that his requirements have been correctly interpreted as after manufacture has commenced alterations may be impossible.
Subject to clause 5 and except and in so far as the Seller is prevented by statute from doing so, it is expressly understood that the Seller gives no warranties or conditions (whether expressed or implied) as to the quality or fitness of Goods for any specific purpose even if that purpose is known to the Seller, and save as provided in these General Conditions and except as aforesaid the Seller shall not be under any liability, whether in contract, tort, or otherwise, in respect of defects in the Goods or failure to correspond to specification or sample or for any damage or loss resulting from such defects or failure or from any work done in connection therewith.
(a) The Buyer will indemnify the Seller against any loss or damage suffered by the Seller as a result of any failure by the Buyer to perform any of the terms and conditions of the Contract.
(b) The Buyer will indemnify the Seller against each and every liability, claim, cost and damage to which the seller is or otherwise be subject arising out of the supply of Goods by the seller and/or any representations or advice given by or on behalf of the Seller in relation to Goods.
(c) The indemnities hereby given shall extend to any costs and expenses incurred by the Seller and shall continue in force notwithstanding the termination of the Contract.
The liability of the Seller in relation to the supply of Goods and/or any representation or advice in relation thereto or any failure to supply or perform the Goods or any defective supply or performance of the Goods shall be limited to the price therefore paid to the Seller by the Buyer.
19. Notice to Third Parties
The Buyer undertakes and agrees to bring fully to the notice of all persons whatsoever with whom the Buyer may deal the terms of the General Conditions 6 and 20.
In addition to the rights conferred by General Condition 4, the Seller shall have the right to cancel all future performance by the Seller of any future obligation of the seller under the Contract or any other contract between the Seller and the Buyer if the Buyer shall:-
(a) commit any breach of contract;
(b) be unable to pay his debts or being an individual shall have a petition presented for an order for his bankruptcy or, being a company, convene a meeting of its creditors or have a petition for winding up presented against it or have a receiver appointed of all or any of its assets;
(c) be the subject of an adverse credit status report by the Seller’s Bank or a reputable credit status organisation.
21. Law Applicable
This Contract is made and shall be governed as to its validity/construction and performance according to the laws of England and the parties shall submit to the exclusive jurisdiction of the English courts in respect of any dispute arising out of the contract.
22. Special Conditions
Any inconsistency between these General Conditions and the Special Conditions shall be resolved in favour of the Special Conditions.