TERMS & CONDITIONS OF SALE
Last updated: August 2023
In these conditions, references to the “Company” are to Dernier & Hamlyn Design Limited and references to the “Buyer” are to the buyer/s with whom the Company enters into any purchasing contract, whether directly or indirectly. References to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1. Validity
1.1 Purchase orders by the Buyer shall constitute offers to buy and no order shall be binding on the Company and no contract shall exist until accepted by the Company in writing (even when the order is in response to Company literature such as, without limitation, advertisements, brochures and catalogues issued by the Company) and such contract shall be subject to the Company’s terms and conditions set out herein.
1.2 Unless expressly agreed in writing and signed by a director of the Company, these conditions shall supersede any other terms appearing elsewhere and exclude and override any other terms or representations stipulated or incorporated or referred to by the Company, whether in the purchase order or in any negotiations or in any course of dealing established between the Company and the Buyer. These conditions shall apply to all contracts of the Company for the sale of goods and/or the supply of services.
1.3 In respect of the supply of services, details of the services to be provided by the Company shall be set out in a schedule and attached to these conditions. The provisions of the schedule shall form part of the contract between the parties as if it was set out in full in these conditions.
2. Prices
2.1 Subject to confirmation by the Company, as indicated in the Company’s acceptance of the Buyer’s order in accordance with clause 1.1, the price of the goods and/or the services shall be the Company’s quoted price, unless no price has been quoted (or a quoted price is no longer valid), in which case the price shall be such price as is listed in the Company’s published price list current at the date of acceptance of the order.
2.2 All quotations shall be given in writing and shall be valid for a period of 45 days, unless otherwise stated. A quotation given by the Company shall only constitute an invitation to treat. Any order from the Buyer based on the quotation shall constitute an offer to buy and no contract shall exist until the order is accepted by the Company in accordance with clause 1.1.
2.3 The price together with all other costs and charges are exclusive of any Value Added Tax and any other tax, which shall be payable by the Buyer.
2.4 The time for payment of the price shall be of the essence of the contract.
3. Terms of Payment
3.1 Unless otherwise agreed by the Company in writing, the Buyer’s order will not be accepted, nor production commenced, nor services rendered unless the Company receives a deposit of 50% of the price (plus VAT) with the order. The balance of the price shall be payable before despatch of the goods and /or the provision of the services and the Company shall notify the Buyer in writing, in respect of the goods, of the despatch date and in respect of the services, of the date the services will be provided (hereinafter referred to as the “Despatch Date”).
3.1.1 If the balance has not been paid by the Despatch Date, the Company shall be entitled to withhold delivery and to charge:
(a) interest (in accordance with clause 3.4) on any outstanding amounts; and
(b) a reasonable sum for storage of the goods (which shall include the cost of insurance).
3.2 Subject to receipt of satisfactory references or such other conditions as the Company sees fit, the Company may, at its sole discretion, establish a credit account for the Buyer. If such an account is established, the Company shall notify the Buyer of any deposits required to accompany an order. In any event, any balance due shall be paid in full by the Buyer within 30 days of the Despatch Date.
3.3 Unless otherwise agreed by the Company in writing and without prejudice to its other rights, if the Company has not received cleared funds of any outstanding balance due under these terms and conditions within 30 days of the due date for payment, the Company may suspend performance of its obligations under any or all contracts with the Buyer and the order shall be deemed cancelled and the provisions of clause 13 shall apply.
3.4 Without prejudice to its other rights, the Company may charge interest on any overdue accounts at the rate of 3% over the base rate from time to time of HSBC Bank plc accruing on a daily basis from the due date for payment until payment is made in full whether before or after judgement.
3.5 All payments shall be due in sterling and shall be paid without any deduction or counterclaim and, unless otherwise agreed in writing by the Company, without any set-off.
3.6 The Company shall have the right to invoice the Buyer for a partial delivery of goods.
3.7 Any advance payment made by the Buyer shall be held by the Company as a deposit and not part payment.
3.8 Unless otherwise provided in these terms and conditions, all invoices payable pursuant to these terms and conditions shall be paid in full by the Buyer within 30 days of the date of each invoice.
4. Delivery of the Goods
4.1 The Company shall use reasonable commercial endeavours to deliver the goods and to perform the services on the agreed dates and times but time of delivery and/or performance shall not be of the essence of the contract. The Company shall not be liable for any loss or damage suffered by the Buyer as a result of a delay.
4.2 Delivery shall occur on despatch of the goods from or collection of the goods from the Company’s premises by a carrier whether or not the carrier is the Company’s agent or servant, unless the Company has also contracted to install the goods in which case delivery will be deemed to occur on installation of the goods (hereinafter referred to as “Delivery”).
4.3 If the Company agrees to store the goods for the Buyer (as indicated to the Buyer in writing), or (subject to the Company agreeing in writing to deliver the goods to the Buyer) the Buyer fails to collect the goods on the Despatch Date, or the Buyer postpones the agreed date of installation, the Company shall invoice the Buyer for all reasonable expenses incurred (which shall include the cost of insurance) in storing the goods.
4.4 Goods delivered in accordance with a contract may not be returned without the Company’s express written agreement.
5. Carriage
5.1 All quotations are ex-works. Packing for international shipment “export packing” will be charged in addition to the ex-works cost. If delivery, carriage, insurance and freight are requested by the Buyer those shall be the sole option of the Company and subject to its agreement in writing and any extra charges for such services shall be payable by the Buyer.
5.2 If the Company has agreed to deliver the goods to the Buyer in accordance with clause 5.1, the Company shall invoice the Buyer for all reasonable expenses incurred, including, without limitation, any additional transportation costs, extra handling and storage costs (which shall include the cost of insurance) as a result of the Buyer’s failure to take delivery of the goods on the agreed delivery date.
6. Goods in Transit & Non-Delivery
6.1 The Buyer hereby accepts the general conditions of any carrier employed by the Company. Neither the Company nor any carrier shall be liable for damage or loss of the goods in transit or for the non-delivery of goods unless notice in writing is given to the carrier concerned and the Company within 3 days of the date of delivery if the goods are damaged, or in the case of non-delivery or loss of goods within 14 days from the Despatch Date, and such other steps are taken by the Buyer (including, if necessary, shorter notice to the carrier concerned) as may be necessary to preserve the claim against the carrier.
6.2 In cases of goods damaged or lost in transit to a destination abroad, the provisions of clause 6.1 shall apply, save that the Company and the carrier concerned must be notified in writing within 7 days of the date of delivery of the goods if the goods are damaged, or if lost or not delivered within 21 days from the Despatch Date.
7. Title & Risk
7.1 Risk of loss or damage of any kind to the goods (but not title) shall pass to the Buyer on Delivery.
7.2 Ownership of the goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the goods; and
(b) all other sums which are, or which become due to the Company from the Buyer on any account.
7.2.1 Until ownership of the goods passes to the Buyer, the Buyer shall not pledge the goods or documents of title thereto or allow any lien to arise thereon. The Buyer shall keep the goods separate and identified as the property of the Company and properly stored, protected and insured.
7.2.2 Until ownership of the goods passes to the Buyer, the Company, without prejudice to any other right or remedy available to it, shall be entitled at any time to require the Buyer to deliver up the goods to the Company and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
8. Services
The Company shall perform such services as it has agreed in writing to supply to the Buyer with reasonable skill and care.
9. Installation of Goods Supplied by the Company
9.1 Where the goods supplied includes installation by the Company or its agents, the prices quoted by the Company to the Buyer will assume that:
(a) the site is ready for installation to commence at the agreed time;
(b) installation is to be completed within normal working hours;
(c) site access is available at all times necessary to complete the installation; and
(d) adequate mechanical lifting equipment is provided by the Buyer unless the Company has expressly agreed in writing to accept responsibility for the provision of such equipment.
9.2 Should any of the conditions set out in 9.1 not be met, the Company shall charge the Buyer for the excess time at the Company’s current rates (including travel and overtime).
9.3 It is the Buyer’s responsibility to provide a safe environment for the Company’s employees and/or subcontractors to carry out the installation. Without detracting from the generality of the foregoing such provision must include heating, lighting and power supplies.
9.4 Protection of carpets, furniture and other vulnerable items is the responsibility of the Buyer.
9.5 If according to the Company, the form of services or the terms of engagement under which the quotation has been provided change in any manner, the Company reserves the right to vary or amend the quotation.
10. Export
10.1 This clause 10 applies where goods are supplied for export from the United Kingdom.
10.2 Unless expressly stated in the Company’s acknowledgement of the Buyer’s order in accordance with clause 1.1, prices are ex-works. Transportation and the preparation of all export documentation may be arranged by the Company at the Buyer’s request in which case extra charges for such services shall be invoiced by the Company.
10.3 The Buyer is responsible for complying with all laws and regulations governing the import of the goods into any country and for ensuring that the goods comply with all laws, regulations and licensing requirements of any country to which they are exported. The Buyer shall fully indemnify the Company against the consequences of any breach of such laws, regulations and licensing requirements.
10.4 Section 32(3) of the Sale of Goods Act 1979 shall not apply. Where goods are handed to a carrier or United Kingdom port for export, that carrier or port shall be treated as an agent for the Company for the purposes of section 44, 46 and 48 of the Sale of Goods Act 1979.
11. Design
11.1 Nothing in any contract with the Buyer shall operate to transfer to the Buyer or license the Buyer to use any intellectual property rights in respect of the goods.
11.2 The Company reserves the right to vary the technique, design, construction and specification of goods without notice. Any such changes in the goods may result in a slight variation in detail from the description or illustrations in Company literature but shall not result in a material variation. All descriptions and illustrations contained in the Company’s catalogues, price lists and advertisements or otherwise communicated to the Buyer are intended to present a general idea of the goods described therein and nothing contained in any of them shall form any part of any contract with the Company.
12. Representation
No employee of the Company is authorised to make any statement, warranty or representation as to the goods and the Buyer shall not be entitled to rely on or seek to rely upon any such statement made. The Buyer shall only be entitled to rely on written statements made by a director of the Company.
13. Cancellation
Without prejudice to its other rights, on cancellation of an order and/or in the event of a breach by the Buyer of any of its obligations under these terms and conditions, a cancellation charge of 50% of the order value will be made by the Company. At the sole discretion of the Company, the Company may impose a lower charge in circumstances where no or less than 50% of production of the goods and/or supply of the services have been completed, or, if the production of the goods and/or supply of the services is over 50% completed, impose a higher charge. Where the Buyer has paid a deposit, the deposit may, at the Company’s sole discretion, be set off against such charge.
14. Liability
14.1 Subject to clause 14.2, if goods manufactured by the Company are defective on Delivery, the Company shall, at its sole option, repair or replace such goods free of charge.
14.1.2 The Buyer shall either return the defective goods to the Company (which shall be at the Company’s expense if the goods are found to be defective and at the expense of the Buyer otherwise) or shall make available the goods for inspection by a representative of the Company before repair or replacement can be effected by the Company or its agent.
14.2 The Company shall not have any liability for defective goods unless claims to that effect are notified verbally to the Company within 3 days of Delivery and confirmed in writing to the Company within 7 days of Delivery.
14.3 Clauses 14.4 to 14.6 set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and (sub-contractors) to the Buyer in respect of:
14.3.1 any breach of these conditions; and
14.3.2 any representation, statement or tortious act or omission including negligence arising under or in connection with these terms and conditions and the contract between the Buyer and the Company.
14.4 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the contract.
14.5 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
14.6 Subject to clauses 14.4 and 14.5:
14.6.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this contract shall be limited to the lower of the contract price or £250,000; and
14.6.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (however caused) which arise out of or in connection with the contract.
15. Force Majeure
The Company shall not be liable for any failure or delay in the performance of its obligations where the same is due to any circumstances outside its reasonable control, including, without limiting the foregoing, acts of war, strikes, lockouts, industrial action, shortage of supplies, breakdown, transport delays, accidents, government action, fire, terrorism or criminal acts.
16. Small Order Charge
A small order administration surcharge of £50 is levied on all orders not exceeding £500 net.
17. Notices
Any notice to be served under these conditions must be in writing and delivered personally, sent by first class prepaid post or sent by facsimile transmission (or airmail where applicable), in the case of the Company, to its registered office and in the case of the Buyer, to its address in its purchase order or such other address as shall be notified in writing to the Company by the Buyer. Notices will be treated as served when delivered (if delivered personally), three days after posting (if posted as aforesaid) and one day after transmission (if sent by facsimile transmission).
18. Copyright Notice
The copyright, design rights and other intellectual property rights in the Company’s brochure, price lists, terms and conditions and all other sales literature and goods belong to the Company.
19. General
19.1 Each right or remedy of the Company under these terms and conditions is without prejudice to any other right or remedy of the Company whether under these terms and conditions or not.
19.2 If any provision of these terms and conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of these terms and conditions and the remainder of such provision shall continue in full force and effect.
19.3 Failure or delay by the Company in enforcing or partially enforcing any provision of these terms and conditions shall not be construed as a waiver of any rights under these terms and conditions.
19.4 Any waiver by the Company of any breach of, or any default under, any provision of these terms and conditions by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall not in any way affect the other provisions of these terms and conditions.
19.5 These terms and conditions shall not create any rights that shall be enforceable by anyone other than the Company and the Buyer.
19.6 No waiver nor variation of these conditions nor any indulgence granted to the Buyer shall be valid unless agreed in writing by a director of the Company and shall not affect the statutory rights of the Company under these conditions.
19.7 Any contract between the Company and the Buyer shall be governed and constructed in accordance with English law. The Buyer submits to the exclusive jurisdiction of the English courts, but the Company may enforce any such contract in any court of competent jurisdiction.