"Seller":- Decor Ireland Ltd, Registered in Northern Ireland at 9 Rathdown Close, Lissue Industrial Estate West, Lisburn, BT28 2RB, Registered Company no. NI607376 trading as Decor Ireland, 9 Rathdown Close, Lissue Industrial Estate West, Lisburn, BT28 2RB.
These terms and conditions apply in preference to and supersede any terms and conditions referred to, offered to or relied on by the Buyer whether in negotiation or at any stage in the dealing between the parties with reference to the goods with which this contract is concerned. Without prejudice to the generality of the foregoing, the Seller will not be bound by any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
Neither the Seller nor the Buyer shall be bound by any variation, addition to, or amendment of these terms unless such is agreed in writing by the parties and signed on their behalf by a duly authorised party.
Any description given or applied to these goods has been given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that he did not in any way rely on any description when entering into the contract.
Notwithstanding that a sample of the goods might have been shown to and inspected by the Buyer, the parties hereto accept that such sample was so shown and inspected for the sole purpose of enabling the Buyer to judge for himself the quality of the bulk, and not so as to constitute a sale by sample.
(a) Payment for goods supplied is due in Cash upon Delivery of the goods unless the Seller has previously allowed the Buyer Credit Account facilitates in which case payment for goods supplied is due 30 days after the end of the month of the invoice date.
(b) If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
(i) Charge interest on the outstanding amount at the rate of 5% per annum above the Bank of England's base rate, accruing daily;
(ii) Require payment in advance of delivery in relation to any goods not previously delivered;
(iii) Refuse to make delivery of any undelivered goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
(iv) Terminate the contract.
The goods are deemed to be delivered to the Buyer when the Seller makes them available to the Buyer or any agent of the Buyer or any carrier (who shall be the Buyer's agent whoever pays its charges) at the Seller's premises or the delivery point agreed by the parties.
The risk in the goods will pass to the Buyer at the moment the goods are dispatched from the Seller's premises. Where the Buyer chooses to collect the goods himself, risk will pass when the goods are entrusted to him or set aside for his collection, whichever happens first.
(a) Notwithstanding delivery and the passing of risk, property and title to the goods shall remain with the Seller until the Seller has received payment of the full price of (a) all goods and/or services the subject of the contract and (b) all other goods and/or services supplied by the Seller to the Buyer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the Seller and the Buyer.
(b) Until such time as title passes to the Buyer, the Seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the goods in which the title remains invested in him.
(c) For the purposes specified above, the Seller or any of his agents or authorised representatives shall be entitled at any reasonable time during normal working hours to enter without notice onto any premises where the goods or any part of the goods are installed, stored or kept or are reasonably believed to be.
(d) The Seller shall also be entitled to issue an injunction to prevent the Buyer from selling, transferring, or otherwise disposing of the goods.
(e) When the Buyer sells or disposes of the goods prior to the Seller receiving full payment, the Buyer should pay the proceeds of such sale or disposition into a separate bank account clearly denoted as an account containing monies deposited for the benefit of the Seller by the Buyer acting in a fiduciary capacity.
10. CERTIFICATES OF SUPPLY
(a) When appropriate, Certificates of Supply of goods will be issued by the Seller to the end user of the goods to satisfy Building Regulations requirements upon submission by the end user of a completed application in the form provided by the Seller.
(f) It is the responsibility of the end user to carry out the application of the goods according to the manufacturers instructions, using the exact quantities recommended and to complete the Certificate accordingly. No responsibility will be accepted by the Seller for goods applied otherwise than in accordance with a Certificate of Supply.
11. FORCE MAJEURE
If delivery is delayed by strikes, lock-outs, fire, accidents, defective materials, delays in receipt of raw material or bought-in goods or components or any other cause beyond the reasonable control of the Seller a reasonable extension of time shall be granted and the Buyer shall pay such reasonable extra charges as shall have been occasioned by the delay. If the delay persists for such time as the Seller considers unreasonable, he may, without liability on his part, terminate the contract.
12. DELAYED DELIVERY
If a firm delivery date is specifically provided for, and the Seller fails to deliver the goods by such time for reasons other than matters beyond its reasonable control, the Buyer shall be entitled to claim a reduction in price by giving the Seller notice in writing within a reasonable time, unless it can be reasonably concluded from the circumstances that no loss has been suffered. Such reduction shall in no circumstances exceed 5% of the price.
13. RELATIONSHIP OF PARTIES
Nothing in this agreement shall be construed as establishing or implying any partnership or joint venture between the parties, and nothing in this agreement shall be deemed to constitute either of the parties as the agent of the other or authorise either party:
to incur any expense on behalf of the other party;
to enter into any engagement or make any representation or warranty on behalf of the other party;
to pledge the credit of, or otherwise bind or oblige the other party;
to commit the other party in any way whatsoever, without in each case obtaining the other party's prior written consent.
14. ASSIGNMENT AND SUB-CONTRACTING
This agreement shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
15. COSTS AND OTHER EXPENSES
Except as specifically agreed to the contrary, any costs in relation to this agreement and its subject-matter which are incurred by either of the parties shall be borne in full by that party.
If any terms or provision in this agreement shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form any part of this agreement, but the validity and enforceability of the remainder of this agreement shall not be affected.
The waiver or forbearance or failure by or of a party in insisting in any one or more instances on the performance of any provision of this agreement shall not be construed in any circumstances as a waiver or abandonment of that party's rights to future performance of such provision and the other party's obligation in respect of such future performance shall continue in full force and effect.
18. DISPUTE MEDIATION
In the event of any dispute or difference arising between the parties which is not resolved by negotiation, either party may refer the matter to the Law Society for Northern Ireland Dispute Resolution Service ("the service") and if the matter has not been resolved within ten working days of referral to the service or such longer period as both parties shall agree, then the mediation by the service shall be deemed to be at an end and each party shall be free to pursue his own remedies in accordance with Clause 19.
19. PROPER LAW
This agreement shall be governed by and construed in accordance with Northern Ireland law and the Buyer consents to the exclusive jurisdiction of the Northern Ireland Courts in all matters regarding it except to the extent that the Seller invokes the jurisdiction of the Courts of any other Country.
20. SET OFF
All amounts due under this Agreement should be paid in full, without any deduction or withholding other and such as may be required by law, and the party owing such amounts shall not be entitled to assert any credit, set off or counterclaim against the other party in order to justify the withholding of payment of any such amount in whole or in part.
21. PRESERVATION OF RIGHTS
The provisions of this agreement, and the rights and remedies of the parties under this agreement, are cumulative and without prejudice and in addition to any right or remedies a party may have at law or in equity; no exercise by a part of any right or remedy under this agreement, or in law or in equity, shall (save to the extent, if any, provided expressly in this agreement or at law or in equity) operate so as to hinder or prevent the exercise by it of any other such right or remedy.