Terms and Conditions Of Sale

1. DEFINITIONS

IN THESE CONDITIONS:

(I) “The Company” means Mallon Windows Limited

(II) “The Customer” means the person with whom the Company contracts.

(III) “The Contract” means the Contract between the Company and the Customer for the sale and purchase of the goods which incorporates the contract Terms.

(IV) “The Contract Terms” means these Terms and Conditions together with any other Terms or matters incorporated and provided in Clause 2 hereof.

(V) “Goods” means the goods material and/or other items or services to be supplied pursuant to the Contract.

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2. SCOPE

2.1 The Contract will be subject to and incorporate the Contract Terms to the exclusion save where context otherwise requires any other items (including any Standard Terms and Conditions) proffered by the Customer whether or not such other Terms are enforced upon delivered with or referred to in any Purchase Order or other document delivered by the Customer to the Company. The foregoing shall not operate to exclude any conditions implied by statute the exclusion of which would be void. Amendments to the Contract Terms would only be incorporated into the Contract if expressly accepted by the Company in writing and signed by a Director of the Company.

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2.2 The Company shall not be bound by any quotations or tender or order for Goods and/or services and the Company reserves the right to withdraw or amend the same at any time prior to the Company’s acceptance of the Customers order.

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3. PRICES

3.1 The prices payable for the goods shall be those charged by the Company at the time of despatch. The price of any goods and/or services shall be as shown in the Contract except that if all or any part of the goods are not delivered within the time of delivery (as hereinafter provided) for any reason wholly or partly beyond the control of the Company the price of such relevant part thereof may be altered by the Company to reflect any increase in its then current price list.

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3.2 All prices estimated or quoted are so estimated or quoted exclusive of VAT or any other similar tax duty or levy. VAT will be charged in respect of any goods or services invoiced or orders accepted at the then prevailing rate.

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4. PAYMENT TERMS — FAILURE TO PAY

4.1 The balance of the price for the Goods and/or services shall be paid in accordance with the Customer Trading Form.

4.2 If payment of the price for any Goods and/or services is overdue, the Company may, without prejudice to any other rights as it may have—

(I) At any time enter upon the premises of the Customer to recover such Goods or any part thereof.

(II) Withhold or suspend delivery of any part of the relevant order or the whole or part of any other order until payment in full (including interest as hereinafter provided) has been made and any cheque in payment has been cleared in the ordinary course of banking business.

(III) Decline to deliver any further Goods, notwithstanding the provisions of clause 5 hereof, in which event the Customer shall be responsible for uplifting the same upon payment as provided above and upon such uplifting the risk shall pass to the Customer.

(IV) Store any Goods pending delivery or uplifting as aforesaid, the cost of such storage being the responsibility of the Customer.

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4.3 Interest on overdue accounts will be charged at the 3% over Ulster Bank base lending rate.

4.4 All cost (including legal costs) incurred in connection with processing and collecting overdue accounts will be charged to the Customers account.

 

5. DELIVERY

5.1 Delivery dates mentioned in any quotation or acceptance form or elsewhere are approximate only and not of any contractual effect and the Company shall not be under any liability to the Customer in respect of any failure to deliver on any particular date or dates. If delivery shall not have taken place within a reasonable time the Company’s liability shall be limited to the value of the goods specified in the Company’s quotation.

5.2 Delivery shall be to the address on the relevant order form. All unloading (whether at the Customers premises or nominated site) is at the Customers sole risk and expense. Delivery in either case shall be deemed to be affected in respect of any Goods upon the arrival at the entrance to such place of delivery. It is the Customers responsibility to be available for the acceptance of Goods.

5.3 If the Customer refuses or fails to take delivery of Goods tendered in accordance with the Contract the Company shall be entitled to immediate payment in full for the Goods so tendered. The Company shall be entitled to store at the risk of the Customer any Goods, which the Customer refuses or fails to take delivery of, and the Customer shall in addition to the purchase price pay all costs of such storage and any additional cost or carriage incurred as a result of such refusal or failure. Refusal by the Customer to take delivery will relieve the Company from the obligation to make further deliveries without prejudice to the Company’s right to recover damages for such refusal.

5.4 Where the Goods are to be collected from the Company‘s premises by the Customer, or by an agent acting on his behalf, liability passes to the Customer upon collection, and such goods shall be deemed to have been collected in good order and condition.

5.5 The Customer shall indemnify the Company against any damage to or loss of any Goods following delivery until receipt by the Company of the full price for such Goods.

5.6 In the case of the Contract for any order involving more than one delivery default is made in payment on the due date the Company shall have the right to suspend all or any further deliveries pending payment or to terminate the Contract in its entirety by notice in writing to the Customer.

5.7 Title to the goods shall only pass to the Customer upon payment in full of the price thereof together with any and all other sums owing and or due to the Company of whatsoever nature and whether under the Contract or otherwise. Until such payment the Customer shall keep the Goods in good condition and store the Goods in such a way as to show clearly that they are the property of the Company PROVIDED THAT the Customer may sell and deliver the goods to a third party in the ordinary course of the Customer’s business on condition that until such payment as aforesaid the Customer shall hold all proceeds of such sales on trust for the Company in a separate account.

 

The Customer hereby assigns all rights and claims which the Customer may have against its customers arising from such sales to third parties until payment is made in full as aforesaid. Where the Goods are combined by the Customer with other items or materials the resulting items shall be deemed to the property of the Company subject to and on the terms aforesaid.

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6. ACCEPTANCE

The Customer is deemed to have accepted the Goods upon delivery pursuant to Clause 5 above or uplifting pursuant to Clause 4.2 (II) above (as the case may be) unless the Company is notified to the contrary by the Customer within 72 hours from the date of delivery or uplifting.

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7. INSPECTION

Any testing and/or inspection required under the Contract shall be carried out at the Company’s works or such other place or places as the Company may appoint and shall be accepted as final by both parties.

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8. THIRD PARTY RIGHTS

The Customer shall indemnify the Company against any and all claims costs demands and expenses incurred by or made against the Company as a direct or indirect result of the carrying out any Work required to be done on or to the goods in accordance with the requirement or specifications of the Customer involving any infringement or claim of infringement of any intellectual or industrial property right of any third party and the Company warrants that it shall transfer to the Customer only such titles as it may have to the Goods.

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9. LIABILITY

9.1 The Company shall not be liable for any shortage in quantities delivered nor for any defect in the quality nature or condition of the Goods nor for failure of the Goods to comply with any specification unless a claim in Writing shall have been received by the Company from the Customer within 72 hours of delivery of the Goods.

9.2 In event of any shortage defect or failure as aforesaid the Company shall make good the shortage and/or as appropriate replace or repair free of charge any Goods found to be defective by reason of faulty material or workmanship provided that as a condition thereof the Company may require that the Goods concerned are returned.

9.3 The Contract shall as far as possible reflect any Guarantee provided to the Company by its supplier. Subject thereto, the Company shall replace or repair (at its sole discretion) free of charge, but excluding cost of transportation, any part which is found to be defective within 6 months of the date of delivery of such part to the Customer. Damage caused through misuse, negligence or accident is excluded from the intention of this Clause.

9.4 These terms set out the entire liability of the Company (whether in contract, negligence or otherwise) in respect of the supply of any Goods and/or services.

9.5 The Customer shall indemnify the Company against any actions, cost, claims or damages however incurred arising in respect of any Goods or services supplied to the Customer in accordance with any Contract.

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10. FORCE MAJEURE

10.1 The Company shall not be liable to the Customer for any loss or damage, which may be suffered by the Customer as a direct or indirect result of the supply of Goods by the Company being prevented hindered delayed or rendered uneconomic by reason of any force majeure circumstances.

10.2 In this Condition “Force Majeure Circumstances” shall mean any Act of God riot, strike, lockout, trade dispute or labour disturbance: accident breakdown of plant or machinery, fire. flood difficulty or increased expense in obtaining workmen materials or transport, or other circumstances whatsoever outside the reasonable control of the Company affecting the provision of the Goods or of raw materials thereof by the Co1npany’s normal source of supply or the delivery of the Goods by the Company’s normal route or means of delivery.

11. TERMINATION

If the Customer enters into a Deed of Arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or (being a Company) it shall pass a resolution for winding-up or the Court shall make an order that the Company shall be wound up (otherwise than for the purposes of amalgamation or reconstruction) or if a receiver shall be appointed of any of the assets or undertaking of the Customer or if circumstances shall arise which entitle the Court or creditor to appoint a receiver or manager or which entitle the Court to make a winding up Order or if the Customer takes or suffers any similar action in consequence of debt or commits any breach of the Contract the Company may stop any Goods in transit and suspend further deliveries and by notice in writing to the Customer may forthwith determine the Contract without prejudice to the provisions of Conditions 4.2 (I) hereof and to any existing claim.

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12. WAIVER

Failure by either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times hereafter.

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13. NOTICE

Any notices hereunder shall be in permanent readable form and shall be deemed properly addressed if addressed to the party concerned as its principal place of business or last known address.

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14. PATENTS

The Customer shall indemnify the Company against all actions, claims and costs damages or losses arising from any infringement of letters patent design trade mark or copyright protected by law in respect of any Goods made or supplied by the Company.

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15. MISCELLANEOUS

15.1 The Company may at its discretion and without prejudice to any of its other rights suspend performance of its obligations hereunder at any time and from time to time if the Customer shall be in breach of any of its obligations hereunder.

15.2 Clause heading in these terms is for guidance and do not form part of such terms.

15.3 Any Contract shall be governed by or construed in accordance with the law of the domicile of the Company and the parties agree to submit to the exclusive jurisdiction of the Courts of that domicile.