TERMS & CONDITIONS OF SALE OF TBT SECURITY LTD. (“CONDITIONS”)
1. TERMS OF CONTRACT
1.1 The following are given the following meaning in these Conditions; “TBT Security” means “TBT Security Ltd.”, trading at Callystown, Clogherhead, Co. Louth, A92 C2X8; “Consumer Goods” means goods supplied by TBT Security, the Customer” means the person who submits the Order with TBT Security; “Non-Consumers Goods” means goods supplied by TBT Security other than Consumer Goods; “the Order” means the Customers instructions to TBT Security to supply the goods; “the goods” means the subject of the Order; “the date of purchase” means the date on which TBT Security indicates its acceptance to supply pursuant to the Order in accordance with Condition 1.3 herein ; “the 1893 Act” means the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of Services Act 1980; “the 1980 act” means the Sale of Goods and Supply of Services Act 1980; “deals as a consumer” has the meaning attributed to same under Section 3 of the 1980 Act; “Ireland” means the 32 counties of Ireland, apart from the 6 counties making up Northern Ireland.
1.2 The contract concluded pursuant to the Order (“this contract”) shall be subject to these Conditions alone, which shall prevail over any inconsistent printed or other terms or conditions used by the Customer or otherwise contained in or referred to in the Customers order or in correspondence or elsewhere and all or any conditions or stipulations inconsistent with these Conditions are hereby excluded and extinguished.
1.3 A Contract for the supply of the goods shall not be deemed to have come into existence until TBT Security agrees to accept the terms of the Order. Any person submitting the Order for the customer shall be taken in good faith by TBT Security to be the authorised agent of the customer, whether the person to be so authorised or not.
1.4 There is no right to cancel the order without the written consent of a duly authorised official of TBT Security.
1.5 Amendment of this contract can only be made by agreement between TBT Security and the customer and to bind TBT Security must be made in writing and signed by an authorised official of TBT Security.
1.6 TBT Security shall, in the performance of any obligations incurred under this contract, be entitled to engage agents, contractors or otherwise.
1.7 Save as expressly stated here in to the contrary, these conditions shall apply and the goods which are consumer goods and the goods which are non-consumer goods.
2.1 No quotation of TBT Security shall constitute an offer and all quotations may be withdrawn at any time.
3.1 The goods will be supplied in accordance with TBT Security’s then subsisting standard specification in relation to goods of that relevant type. TBT Security reserves the right at any time and from time to time to make such improvements, alterations and modification or such specification as it or its suppliers think desirable in all circumstances.
4.1 The specification for packaging the goods shall be entirely at the discretion of TBT Security who shall have the right to pack all the goods in such manner and with such manner and with such materials and such quantities as it, in its absolute discretion, thinks fit and TBT Security shall not be obliged to comply with any packing instructions or requests of the customer.
5. DELIVERY AND RISK
5.1 Delivery will be made by TBT Security to the customers address only if specified by the customer. The risk for the goods will pass to the customer immediately.
5.2 On delivery of the goods at the above described customers address or into custody on the customers behalf, if sooner and should be insured accordingly. Any person executing any delivery note provided by TBT Security to be the authorised signatory of the customer whether the signatory be authorised or not. Execution of the delivery note in the manner described shall be taken to be conclusive proof that the goods were delivered to the customer.
5.3 If a delivery schedule is agreed, TBT Security will use its best endeavors to comply with the same. TBT Security shall not in any circumstance be liable for failure to do so, in particular, and without prejudice to the generality of the foregoing, failure to deliver the goods by the agreed date or dates will not be accepted as sufficient cause for cancellation of this contract by the customer, nor will TBT Security be liable for late delivery arising out of any cause what so ever or for any direct, in-direct, actual or consequential loss, injury or damage whether pecuniary financial or otherwise, arising therefrom suffered by the customer or any person or company. Where delivery is to be made by installments, delay in delivering one installment shall not entitle the customer to refuse to accept the remaining installment.
5.4 In addition to whatever other rights TBT Security may have, it reserves the right to charge the carriage insurance costs to the customer in cases where the customer refuses to accept
delivery of the goods supplied pursuant to this contract.
6. PROPERTY IN THE GOODS
6.1 The title in the goods supplied by TBT Security to the customer here under shall remain the property of TBT Security until all debts due by the customer to TBT Security in respect of such goods have been paid in full (including any VAT or other tax or levy in respect there of any interest due pursuant to condition 7.4 herein).
6.2 Until property in the goods passes to the customer it shall,
a) Keep the goods as a trustee and in fiduciary capacity for TBT Security and shall ensure that the same remain at all times separately identifiable as the property of TBT Security. In the event of non payment of the goods at the time due, any employee, agent or contractor authorised by TBT Security shall be entitled to enter upon any premises owned or occupied by the customer for the purpose of identifying any goods which are the property of TBT Security and which are in possession of the customer and removing any of the said goods.
b) Keep the goods fully insured and any moneys received by the customer on foot of any
insurance policy in respect of any damage, deterioration, loss or destruction of the goods shall be held on trust for TBT Security and if not paid directly to TBT Security shall be lodged to the separate account mentioned in 6.3 below.
6.3 Should the customer, while in possession of any goods the property wherein remains in TBT Security, sell or dispose of the goods to any other person, such part of the proceeds of such sale or disposal as is attributed to the price due by the customer to TBT Security in respect of such goods, shall be held by the customer on trust for TBT Security, said proceeds to be paid into a separate account and held on trust of and as the property of TBT Security. The customer shall furnish to TBT Security at the end of every month, and up-to-date bank statement showing the balance in such account.
6.4 Where a cheque, bill of exchange or other instrument is received as payment for any of the goods, TBT Security shall not be deemed to have received payment until the cheque, bill of exchange or other instrument has been honoured. TBT Security may, at any time, give notice to the customer requiring the customer to re-deliver at the customers expense any goods supplied by TBT Security in which TBT Security has property where the customer is in default of payment for longer than 3 days of the date of the invoice or in any bill of exchange, cheque or other negotiable instrument drawn or accepted or endorsed by the customer in favour of TBT Security is dishonoured on presentation of payment.
6.5 Nothing in this condition 6 shall prejudice TBT Security’s right to sue the customer for any debts due in relation to the goods and to payment of damages, loss of profits, and interest.
7. PRICE AND PAYMENT
7.1 Unless agreed separately and in writing by TBT Security, the price of the goods shall be the price resulting in TBT Security’s current trade price list relative thereto at the date of the dispatch of the goods to the customer, or in the event of a quotation being given by TBT Security in relation to the sale of goods the price reflected in said quotation (“the price”).
7.2 The price is exclusive of Value Added Tax or any other tax, charge, duty or costs connected therewith or thereafter imposed or any Value Added Tax, charge, duty or costs therewith payable in respect of the goods supplied by TBT Security will be borne by the customer.
7.3 TBT Security may complete this contract by installments and invoice the installments separately. Payment of any installment due is condition precedent to starting further deliveries. TBT Security shall have the right any contract in respect of the goods or any of them when an installment payment is in arrears. The customer shall have a corresponding right if goods pursuant to an instalment are not delivered. Termination so effected by TBT Security shall be without any liability whatsoever on its part. The losses of TBT Security resulting from withholding delivery of any goods due to non-payment by the customer shall be refunded in total by the customer.
7.4 Unless otherwise agreed in writing by TBT Security, the customer agrees to pay interest on any sums due to TBT Security set out in an invoice issued in relation to this contract which have not been paid by the end of the month following the month of invoicing such invoice at a rate of 2% per month accruing from day to day, until payment of all sums due on the relevant invoice is received by TBT Security. The customer shall be responsible for all costs legal or otherwise incurred by TBT Security in seeking payment of the sums due. The interest referred to above shall be payable without prejudice to TBT Security’s other rights and before as well as after judgement.
7.5 Should the customer or TBT Security as appropriate, become bankrupt or insolvent, or make any composition for the benefit of their respected creditors, or take or suffer any similar action in consequences of a debt, or being a company, the customer or TBT Security, as appropriate, go into liquidation, whether voluntary or compulsorily (other than for the purpose of reconstruction or amalgamation), of a receiver or examiner is appointed over all or any of these respective assets, or a petition is presented to a court for the appointment of an examiner to the customer or TBT Security, or by virtue of Section 214 of the Companies Act 1963 the customer or TBT Security, as appropriate are deemed unable to pay their respective debts, then TBT Security who are the customer, as appropriate shall be entitled forthwith, as its opinion, without prejudice to any other rights or remedies TBT Security or the customer, as appropriate, may have and without incurring any liability, cancel any other contract with the customer or TBT Security, as appropriate, and in the case of TBT Security, TBT Security may stop any of the goods in transit, and may, without prejudice to any other rights and remedies available to it, demand immediate payment of any outstanding amounts in relation to this contract.
8. GUARANTEE MATTERS RELATING TO AND RETURN OF CONSUMER GOODS
8.1 The provisions contained in this condition 8 shall apply to the goods which are consumer goods which shall not apply to goods which are non-consumer goods.
8.2 The goods will be subject to the standard form of guarantee for the goods provided by TBT Security at the date of despatch thereof to the customer save that the terms of such guarantees may be amended at any time by TBT Security on giving notice of the new/amended terms of guarantee which shall apply to any stock by the customer.
8.3 In the event of the goods being returned to the Customer for the purpose of repair and or maintenance and or servicing and or pursuant to a valid claim under the relevant standard from TBT Security guarantee in relation thereto, they shall be accepted by the Customer who shall use his best endeavors to duly and properly perform the service requested by the claimant or which is otherwise appropriate to ensure compliance with the said guarantee.
8.4 Subject to condition 8.6 herein the Customer shall not be entitled to claim a reimbursement from TBT Security in respect of costs or charges (including labour costs) incurred by it in the repair, maintenance or servicing of the goods and this is so whether the repair, maintenance or service is performed by the Customer with a view to ensuring compliance with TBT Security guarantee or otherwise.
8.5 Spare parts requested from TBT Security by the Customer with a view to the latter rectifying goods returned pursuant to a valid claim under the relevant standard from TBT Security guarantee issued in relation to the goods, shall be supplied (subject always TBT Security having the requisite spare parts available at the branch) free of charge subject to the corresponding faulty parts in the goods being immediately returned to TBT Security by the Customer. Non-return of the faulty parts as before said shall entitle TBT Security to invoice the customer for the price (inclusive of all delivery costs and taxes relating thereto) of the spare parts so furnished.
8.6 In the event of the Customer being unable to service, repair or otherwise rectify the goods or any of them returned to it (whether pursuant to a valid claim made under the relevant standard form TBT Security guarantee relating to the goods or otherwise) said goods may be returned by the Customer to TBT Security, subject always however to the prior authorisation of TBT Security having been first obtained as to such return. Work done on the goods by TBT Security shall be subject to TBT Security’s then subsisting Conditions of Supply of Service. TBT Security shall be entitled to charge the Customer for all work done on (including the cost of spare parts fitted into labour costs incurred in relation to) the goods returned to it by the Customer as well as all costs incurred in returning said goods to the Customer provided however that no such charge shall be made for work performed or spare parts fitted arising out of a valid claim made under the relevant standard form TBT Security guarantee applicable.
8.7 The Customer shall observe the terms of the relevant standard form TBT Security guarantee applicable to the goods and shall not give any express indication to the contrary to any buyer of the goods at the time of delivery to the latter or give its own written undertaking that it will service repair or otherwise deal with the goods following purchase by the buyer.
8.8 The Customer shall be responsible for the cost of carriage and insurance in respect of the goods or any part of the goods returned by it to TBT Security for whatever reason, which goods shall be at the risk of the Customer until actual receipt thereof by TBT Security.
8.9 The Customer shall comply with all requirements incumbent upon it in any TBT Security guarantee issued with the goods relating to the completion and filling of guarantee cards, and within the time periods specified in such cards.
8.10 A valid claim to have the goods rectified pursuant to any Condition herein shall confer upon the right to have the goods repaired but not replaced.
9.1 Except provided herein, (and subject to Condition 9.4 below), any condition, warranty, term, representation and statement whatsoever of the art of TBT Security in respect of the goods, whether expressed or implied and whether statutory or arising under common law shall be excluded including in particular, but without prejudice to the generality of the foregoing, any condition, warranty, term, representation and statement as to the quality of the goods or their fitness for any purpose or as to the quality of any service to be provided here-under, or however, that the implied undertakings as to title provide for under Section 12 of the 1893 Act shall in no way restricted or excluded by any of the provisions of these Conditions.
9.2 TBT Security shall have no liability to the Customer whatsoever and howsoever arising in respect of the installation, maintenance and servicing of the goods which re Non-consumer Goods or for any act, default, omission or statement of or work performed by any contractor consulted or engaged by the Customer in relation to the installation and or servicing and or maintenance of the goods which are Non-consumer Goods, and this is so notwithstanding that the contractor may have been introduced or recommended by TBT Security or there may have been quoted by TBT Security to the Customer a global price covering the amount payable to TBT Security for the purchase of goods which are Non-consumer Goods and the amount payable to the contractor(s) for the installation and or maintenance and or servicing of the goods which are Non-consumer goods.
9.3 TBT Security shall have no liability to the customer whatsoever and howsoever arising in respect of any damage injury or loss suffered directly or indirectly by the Customer or by any other person firm or company thereof arising out of or in connection with the incorrect delivery, late delivery, non-delivery, sale, installation, maintenance, servicing, use, performance, failure, interruption or breakdown of the remedying of any defect in the goods save as otherwise expressly provided in these Conditions, in particular, but without prejudice to the generality of the foregoing, no liability shall be incurred by TBT Security for any incidental, consequential, direct, indirect, special or punitive damages or liabilities of any kind or loss or revenue, loss of business or other physical or financial loss or injury (apart from the death of a Customer or personal injury to the latter resulting from any act of omission by TBT Security) arising out of or in connection with the incorrect delivery, late delivery, non-delivery, sale, installation, maintenance, servicing, use, performance, failure, interruption or breakdown of or the remedying of any defect of goods whether suffered by the Customer or any other person, firm or company and whether resulting from the negligent act or omission or otherwise of TBT Security or its agents, contractors, suppliers or otherwise.
9.4 In the event of TBT Security failing to perform or it believing that it may be prevented from performing any one or more of the obligations undertaken pursuant to this contract (including delivery in accordance with any delivery schedule, as appropriate) due to or arising out of any event or cause of whatsoever nature beyond the control of TBT Security or force majeure, TBT Security shall not be liable for any default of this contract arising therefrom and TBT Security shall have the option either to cancel this contract wholly or partially or to extend the time of delivery or the time for performance of any obligations to be performed there-under during such period as the circumstances or any of them continue. In the event of such cancellation or extension by TBT Security, the Customer shall have no claims whatsoever against TBT Security.
10.1 No claim by the Customer as to non-delivery of the goods or as to furnish goods in compliance with this contract shall be considered by the Company unless the following requirements are complied with :
(a) Non-delivery of the goods invoiced for delivery in Ireland which are not received within 7 days of the date of dispatch must be advised in writing by the Customer to TBT Security subject to it being established that the goods were so damaged the liability of TBT Security shall be limited solely to procuring (subject at all times to the provisions of Condition 9.4 hereof) that a fresh delivery of the goods to be dispatched to the Customer.
(b) Where the goods are damaged in transit such damage must be notified in writing by the Customer to TBT Security within 3 working days of delivery of the goods to the Customer. Subject to it being established that the goods were so damaged the liability of TBT Security shall be limited to rectifying (whether through the employment of its employees, agents, contractors or otherwise) the damage without cost or charge in relation to such rectification or the labour expended, being made to the Customer. The Customer shall bear the costs of returning the goods to TBT Security for rectification, include, inter alia, all carriage and insurance costs relating thereto. TBT Security shall, in turn, bear the costs of returning the goods to the Customer, following rectification, to include, inter alia, carriage and insurance costs. TBT Security assume no other liability apart from that expressly stated above, in particular TBT Security shall have no obligation to provide substitute goods during the period when the damaged goods are returned to TBT Security for rectification.
(c) Any shortfall in the number of items of the goods contracted to be delivered pursuant to his contract shall be notified by writing by the Customer to TBT Security within 3 working days of delivery of the goods or any of them to the Customer. Subject to it being established that such shortfall did occur on delivery the liability of TBT Security shall be limited solely to making a further delivery to make up the shortfall, the cost of such further delivery being borne by TBT Security.
(d) Any over delivery in the number of items of the goods contracted to be delivered pursuant to his contract shall be notified by writing by the Customer to TBT Security within 3 working days of delivery of the goods to the Customer. Subject to it being established that such oversupply did occur on delivery the Customer shall store the items of oversupply separate from his other goods and permit collection of them by a duly authorised employee or agent or contractor to TBT Security who call for same.
(e) Where the goods arrive in a defective or faulty condition (such condition not arising as a result of damage in transit the Customer shall be entitled to return the said goods to TBT Security for credit provided that said goods are returned in the original packing and are dispatched (carriage and insurance paid) to TBT Security within 3 working days of delivery of the goods.
11. TECHNICAL INFORMATION AND TRADEMARKS
11.1 All information of a technical nature and partic ulars of the goods and performance given by TBT Security are given in good faith, but no responsibility is accepted by TBT Security for the accuracy and their supply shall not be used to find liability on TBT Security’s part.
11.2 The Customer shall not :
(a) Apply any trademark of which TBT Security is the proprietor or registered user (“TBT Security Trade Mark”) to the goods after they have suffered any alteration in their state or condition, get up or packing;
(b) After, partly remove or partly obliterate any TBT Security Trade Mark;
(c) Apply any other trade mark to the goods;
(d) Add any other matter in writing that is likely to injure the reputation of any TBT Security Trade Mark.
12. VALIDITY, PROPER LAW AND JURISDICTION
12.1 In the event of any condition herein or part thereof being rendered void or unenforceable by virtue of any legislation, rule of law or otherwise to which it is subject, it shall be as void or unenforceable to that extent only and no further and validity and enforceability of the rest of the Condition or Conditions as the case may be, shall not be affected thereby. Should any Condition herein be rendered void or unenforceable, whether wholly or in part, TBT Security and the Customer shall endeavor without daily to attain the economic result aimed at by the invalid Condition (or part thereof, as appropriate), in another legally permissible manner.
12.2 These Conditions shall be governed by and constructed in accordance with the Laws of Ireland and the Courts shall have the exclusive jurisdiction to decide any difference or disputes arising between TBT Security and the Customer.
13.1 Any notice or other communication authorised or required to be given in writing by any party thereunder or for the purposes hereof to the other party hereunder shall be sufficiently given if delivered by hand or sent by post to the address of TBT Security described above in Condition 1.1 hereof or the address of the Customer as provided for in Condition 5.1 hereof, as the case may be as shall be notified from time to time by one party to the other. Any notice or communication shall be deemed to be received by the recipient in the case of a letter which is hand delivered, when actually delivered, and in the case of a letter sent by post, on the fourth day after posting (or on the actual receipt if earlier).
14.1 NOTHING IN THE CONDITIONS ARE INTENDED TO NOR SHALL BE INTERPRETED SO AS TO RESTRICT OR EXCLUDE IN ANY MANNER WHATSOEVER THE RIGHTS WHICH ANY CUSTOMER WHO DEALS AS A CONSUMER ENJOYS BY VIRTUE OF SECTIONS 12, 13, 14 OR 15 OF THE 1893 ACT OR THE CIVIL LIABILITY ACT, 1961 OR WHICH THE CUSTOMER BEING ONE WHO DOES NOT DEAL AS A CONSUMER, ENJOYS BY VIRTUE OF SECTION 12 OF THE 1893 ACT. THE EXCLUSION OR RESTRICTION PROVIDED HEREIN OF THE RIGHTS CONFERRED ON THE CUSTOMER (BEING ONE WHO DEALS AS A CONSUMER) UNDER SECTIONS 13, 14 AND 15 OF THE 1893 ACT, IS SUBJECT TO SECTION 55 OF THE 1893 ACT. THE EXCLUSION OR RESTRICTION PROVIDED HEREIN OF THE RIGHTS CONFERRED TO THE CUSTOMER UNDER SECTION 39 OF THE 1980 ACT, IS SUBJECT TO SECTION 40 OF THE 1980 ACT.