Dayex Terms of Business and Conditions of Sale
1. In these Conditions:
“the Company” means J P Dible and E G Dible trading as Dayex of 13 Edison Road, Churchfields Industrial Estate, Salisbury, Wiltshire, SP2 7NU
“Customer” means the person, Company, firm, or other legal body on whose behalf the Order has been placed with the Company.
“Order” means the Customer’s instructions to the Company to supply goods.
“Price” means the price of goods specified in the latest price list of the Company of agreed by the Company on acceptance of the Customer’s Order.
“Delivery” means transportation of goods from the Company or its authorized agent to the Customer to the destination point agreed by the Company at the time of the Company’s acceptance of the order, or at the Company’s premises if the Customer is collecting them or arranging carriage.
“Contract” means the Contract formed by the acceptance of the Order by the Company or acceptance of the customers offer on these terms or as these terms as carried by agreement in writing by the Company and if doubt exists as to these terms as varied these terms shall prevail.
2. Pre-Contract Statements:
2.1 An order or Orders are accepted by the Company exclusively upon these terms and Conditions and no other Conditions or representations whatsoever referred to in negotiations or set out in the Order or Order s or otherwise shall be incorporated in to the Contract unless the Company expressly so agrees in a written memorandum signed on behalf of the Company.
2.2 Acceptance of all orders by the Company shall be deemed to be at the Company's place of business at Anton mill Road, Andover, Hampshire, SP10 2RW.
3. The Order
3.1 No order by the Customer shall form part of or constitute a Contract between the customer and the Company unless the same be accepted by the Company.
3.2 All telephone orders received or acknowledged by the Company shall be subject to these terms and Conditions.
3.3 All written orders received by the Company shall be subject to these terms and Conditions and any acceptance of any order by the Company shall be so subject unless the same shall have been varied in writing by the Company and memorandum thereof signed on behalf of the Company.
4. The Price
4.1 The price shall be ht Company’s quoted price which shall be binding on the Company's quotation within 30 days.
4.2 Unless otherwise quoted the Price quoted excludes VAT.
4.3 VAT will be charged at the rate ruling at the time of delivery.
4.4 Unless otherwise stated the Price quoted shall exclude delivery.
4.5 At any time up to 7 days before Delivery the Company may adjust the Price to reflect any increase in the costs of supplying the goods which are beyond the reasonable control of the Company (including without limitation, foreign exchange fluctuations, taxes and duties and the cost of labour, material and other manufacturing costs) Provided that the customer may cancel the Contract within any 2 days of any such notice of increase from the Company.
5.1 Any delivery date specified by or agreed by the Company shall be deemed an estimate only and the Company shall not be liable for failure to deliver in accordance with the delivery date unless a written memorandum from the Company and signed on behalf of the Company specifies therein that “time is of the essence for delivery” against the delivery date specified and subject to the limitation that the Company shall not be liable for any damage of loss arising directly or indirectly out of any delay in delivery.
5.2 Unless time is expressed to be of the essence on delivery in accordance with paragraph 5.1 above ht customer shall not be entitled to refuse the goods because of late delivery unless the delay shall be within the Company’s control and be unreasonable.
5.3 If any sum is overdue form the customer to the Company the Company may withhold any goods due for dispatch to the customer under any Contract between the customer and the Company without prejudice to the Company’s rights under the Contract.
6. Acceptance of Delivery
6.1 Unless otherwise agreed in writing goods shall be collected by the customer
6.2 If it is agreed that goods will be delivered by the Company the choice of carrier shall be at the absolute discretion of the Company.
6.3 The customer shall advise the Company and the carrier in writing of any loss or damage to goods within the following time limits:-
6.3.1 partial loss damage defects or non delivery of any separate part of a consignment shall be advised to the Company within 7 days of actual date of delivery or the part of the consignment.
6.3.2 non delivery of whole consignment shall be advised within 14 days of notice of dispatch received by the customer.
7.1 Where any advance payment is required by the Company the performance of the Contract by the company shall be conditional upon receipt thereof by the Company.
7.2 The customer is to pay in cash or otherwise in cleared funds upon Delivery unless the customer has an agreed credit account with the Company.
7.3 If the customer has an agreed credit account payment is due no later than 30 days after Delivery.
7.4 If the customer fails to pay the Company in full on the due date the Company may (without prejudice to any other rights under the Contract)-
7.4.1 suspend or cancel any future deliveries
7.4.2 cancel any discounts offered to the customer
7.4.3 charge interest on any amount outstanding form the date when payment became due from day to day until payment at a rate of 4% above Barclays’ Banks plc’s base rate from time to time in force and interest shall accrue at such rate after as well as before any judgment.
8. Risk and Title
8.1 The risk in the goods will pass to the customer form the time of Delivery:-
8.1.1 at the Company premises if the customer is collecting them or arranging carriage or
8.1.2 at the destination point agreed by the Company if it is arranging carriage.
8.2 In spite of delivery having been made title in the goods shall not pass form the Company until:
8.2.1 the customer shall have paid the price plus VAT in full;
8.2.2 no other sums whatever shall be due from the customer to the Company.
8.3 Until title win the goods passes to the Company in accordance with Clauses 8.2.1 and 8.2.2 the customer shall hold the good and each of them on a fiduciary basis as bailee for the Company. The customer shall store the goods (at no cost of the Company) separately from all other foods in its possession and marked in such a way that they are clearly identified as the Company s property.
8.4 Notwithstanding that the goods (or any of them) remain the property of the Company the customer may sell or use the goods in the ordinary course of the customers business at full market value of the account of the Company. Any such sale or dealing shall be a sale of the Company s property by the customer on the customer s own behalf and the customer shall deal as principal when making such sales or dealings. Until the title in the goods passes from the Company the entire proceeds if sale or otherwise of the goods shall be held in trust for the Company and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Company s money.
8.5 The Company shall be entitled to recover the price (plus VAT) notwithstanding that the title in any of the foods has not been passed form the customer.
8.6 Until such tune as title in the goods passes from the Company the customer shall upon request deliver up such of the goods as have not ceased to be in existence or resold to the Company.
8.7 The customer shall not pledge or in any way charge by way of security for any indebtedness any of the goods which are the property of the Company. Without prejudice to the other rights of the Company, if the customer does so all sums whatever owing by the Company to the customer shall forthwith become due and payable.
8.8 The customer shall insure and keep insured the good sot the full price against “all risks” to the reasonable satisfaction of the Company until the date that the title in the goods passes from the Company, and shall whenever requested by the Company produce a Company of the policy of insurance. Without prejudice to the other rights of the Company, if the customer fails to do so all sums whatever owing by the customer to the Company shall forthwith become due and payable.
9.1 All data containing specifications of weights dimensions quantities and the like are hereby declared to be approximate only (pr where tolerances are prescribed, to be within those tolerances) as are al weights and dimensions.
9.2 The customer must ensure that the specifications supplied to the Company are accurate and that the goods Delivered in accordance with those specifications will be fit for and suitable for the intended use. This is inclusive of measurements for curtains. Every effort will be made to confirm/reconfirm measurements. Orders placed with incorrect measurements either via the telephone or via dayex.co.uk will have every effort with in reason to rectify and will be handled on a case by case basis. The company accepts no responsibility for incorrect measurements that have been submitted to the company either via telephone, e-mail or dayex.co.uk
9.3 The customer shall arrange for inspection of all goods immediately upon Delivery and shall within 7 days notify the Company of any alleged damage shortage loss or defect or other particulars by reason of which it alleges the goods supplied do not conform to the Contract and in the absence of such notice within the time specified the goods shall be deemed to have been supplied in accordance with the Contract an accepted by the customer and all claims actions rights or remedies claiming the goods are not in conformity with the Contract shall be deemed waived by the customer.
9.4 Upon notice given by the customer to the Company under Clause 9.3 the customer shall:
9.4.1 preserve the goods intact and as delivered for the period of 14 days during which the Company its employees or agents shall have the right (and an irrevocable license is hereby given for the said period for exThe customers premises at reasonable hours for his purpose) to enter customer’s premises to inspect and investigate the Companymplaint and
9.4.2 if the customer shall prohibit restrict or impede the Company s right hereunder during he said periods the Company shall be released form liability therefore and the goods shall be deemed to have been accepted by the customer in accordance with the terms of the Contract.
10. Company Warranties
10.1 The Company warrants that the goods are free from material defects at the time of delivery.
10.2 The goods shall be manufactured and supplied in accordance with the description contains and the Company s specifications and manufactured in accordance with all applicable British Standards with relate specifically to the goods.
10.3 The Company may from time to time make changes in the specifications of the goods which are required to comply within applicable safety or stator requirements or which do not materially affect the quality or fitness for purpose of the goods.
10.4 The customer shall inspect the goods on delivery and shall within 7 days of delivery notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or sum. The customer shall afford the opportunity to insect the good s within a reasonable time following delivery and before any use is made of them. If the customer shall fail to Comply with these provisions the goods shall be conclusively presumed to be accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of the goods and the customer shall be deemed to have accepted the goods.
10.5 If the goods are not in accordance with the Contract of any reason the customer’s sole remedy shall be limited to the Company making good any shortage by replacing such goods or, if the Company shall elect, by refunding a proportional part of the Price.
10.6 The Company shall be under no liability whatever to the Customer for any indirect loss or expense (including loss or profit) suffered by the Customer arising out of any breach by the Company of this Contract.
10.7 In the event of nay breach of this Contract by the Company the remedy of the customer shall be limited to damages. Under no circumstance shall the liability of the Company exceed the Price of the goods.
10.7 All warranties and Conditions whether implied by statute or otherwise are excluded from this Contract. Provided that nothing in this Contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Company or affect the statuary rights of a Buyer dealing as a Customer.
11.1 These terms and Conditions together with the Order Constitute the entire Contract between the parties and no statement given orally of in writing should be deemed incorporated herein unless made in writing and signed on behalf of each party. Promotional material or samples supplies by the Company do not form part of this Contract. Each of the clauses and sub clause of these terms and Conditions is distinct and severable. If any provision of these terms and Conditions shall be determined to be invalid, illegal, or unenforceable, the remainder of these term and Conditions shall continue to be valid, legal and enforceable to the fullest extent of the law. From time to time the Company reserves the right to revise its terms and Conditions.
11.2 Any time or indulgence granted by the Company or delay in exercising any of its rights under this Contract shall not prejudice or affect the Company s rights or operate as a waiver in the same.
11.3 The Company reserves the right to refuse to open a customer account or to supply a customer.
11.4 The customer shall not be entitled to assign its rights or obligations pursuant to this Contract.
11.5 The Company may suspend or terminate the Contract if the customer is bankrupt or insolvent or makes any voluntary arrangement with its creditors or becomes an administration order or has an administrative receiver appointed over any of its assets or the Company has reason to believe that any to the foregoing Conditions may Company into existence or any amount owing to the Company that is overdue or where the customer has exceeded any credit limit.
11.6 The Contract shall at all times be governed construed and enforced in accordance with English law which shall be the proper law of the Contract and both parties thereby submit to the exclusive jurisdiction of the English Courts.
11.7 If the customer is more than one person, each person has joint and several obligations under these terms and Conditions.
11.8 A person who is not a party of any Contract made pursuant to these terms and Conditions shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any terms of such Contract and the Company shall not be liable to any such third party in respect of the goods.