1.1 These Conditions are the only conditions upon which we, Delmec Engineering Ltd. (“Delmec Engineering Ltd.”) are prepared to deal with you, and they shall govern the contract between us to the entire exclusion of any other express or implied conditions.
1.2 In these Conditions:
“Buyer” means the person, firm or company buying Equipment or Services from Delmec Engineering Ltd.
“Equipment” means the equipment (including any instalment of the equipment or any parts for them) which Delmec Engineering Ltd. is to supply;
“Services” means the services which Delmec Engineering Ltd. is to provide or to have provided;
“Specification” means the specification agreed between Delmec Engineering Ltd. and the buyer.
“Contract” means the contract for the sale and purchase of the Equipment and/or supply of the Services.
“Customer” means the buyer as defined above or any person, firm or company to whom equipment or services are sold on to.
1.3 These Conditions may only be modified by a variation in writing signed by a Director of Delmec Engineering Ltd. or Mr Kealan Delaney and no other action on the part of Delmec Engineering Ltd. (whether delivery of the Equipment, or supply of the Services, or otherwise, shall be construed as an acceptance of any other conditions.
1.4 These Conditions other than as modified in accordance with condition 1.3 and together with the matters referred to in the Specification and in Delmec Engineering Ltd.’s quotation and/or acceptance of order embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications. This condition shall not exclude any liability in respect of any statement made fraudulently by either party prior to the date of the Contract.
1.5 The employees and agents of Delmec Engineering Ltd. are not authorised to make any representations concerning the Equipment or Services unless confirmed by Delmec Engineering Ltd. in writing. In entering into the Contract the buyer acknowledges that it does not rely on any such representations which are not so confirmed.
1.6 A contract is only concluded when Delmec Engineering Ltd. despatches an acceptance of order to the buyer. Any quotation in whatever form given to the buyer is given subject to these Conditions and does not constitute an offer to sell or supply.
2.1 Delmec Engineering Ltd. warrants that the Equipment that it manufactures shall at the time of delivery be free from defects in workmanship and materials and/or the Services will be carried out with reasonable care and skill. If any Equipment or Services do not conform to this warranty Delmec Engineering Ltd. will at its option:
2.1.1 replace the Equipment or repeat the Services found not to conform to the warranty;
2.1.2 take such steps as Delmec Engineering Ltd. thinks necessary to bring the Equipment into a state where they are free from such defects; or
2.1.3 take back the Equipment found not to conform to the warranty and refund the appropriate part of the purchase price; or
2.1.4 refund the appropriate part of the charge for the Services.
Provided that Delmec Engineering Ltd.’s liability shall in no event exceed the price of the Equipment or Services and performance of any one of the above options shall constitute an entire discharge of Delmec Engineering Ltd.’s liability under this warranty.
2.2 The above warranty is subject to the following conditions:
2.2.1 The buyer must give written notice to Delmec Engineering Ltd. of the alleged defect in the Equipment or Services within seven days of the time when The buyer discovers or ought to have discovered the defect, and in any event within twelve months of delivery or supply of the Equipment or Services; and
2.2.2 The buyer must give Delmec Engineering Ltd. a reasonable opportunity to inspect the Equipment and, if requested by Delmec Engineering Ltd., return the allegedly defective Equipment to Delmec Engineering Ltd.’s works, carriage pre-paid, for inspection to take place there; and
2.2.3 the Equipment have not been altered or modified in any way whatsoever and have not been subjected to misuse or unauthorised repair; and
2.2.4 the Equipment have been properly installed and connected; and
2.2.5 The buyer has complied with its obligations under this or any other contract made with Delmec Engineering Ltd.
2.3 Where the equipment are manufactured other than by Delmec Engineering Ltd., and resold by Delmec Engineering Ltd., Delmec Engineering Ltd. gives no warranty as to the quality or fitness for purpose of such equipment save that Delmec Engineering Ltd. shall use all reasonable endeavours to pass on to The buyer the benefit of any warranties given by the third party manufacturer or supplier. Such equipment will include equipment merely assembled by Delmec Engineering Ltd. from proprietary components manufactured by third parties.
2.4 Except as provided in condition 2.1 and in Section 12 of the Sale of Equipment Act 1979 and Section 2 of the Supply of Equipment and Services Act 1982:-
2.4.1 all conditions and warranties, express or implied, as to the quality or fitness for any purpose of the Equipment or as to the provision of the Services are expressly excluded; and
2.4.2 Delmec Engineering Ltd. shall not under any circumstances be liable in contract, tort, statute or otherwise for any direct, indirect or consequential loss or for increased costs or expenses, or loss of profit, business, contracts, revenues or savings howsoever arising which may be suffered by The buyer (except in respect of death or personal injury caused by Delmec Engineering Ltd.’s negligence).
2.5 If, notwithstanding the above provisions of this Condition, Delmec Engineering Ltd. is found liable for any loss or damage suffered by The buyer, that liability shall in no event exceed the price of the Equipment or Services.
2.6 Delmec Engineering Ltd. reserves the right to make any changes to the Specification of the Equipment or to the components within the Equipment provided that these do not materially affect the quality or performance of the Equipment.
2.7 Where the completion of the contract requires the cooperation of The buyer and/or the timely submission of information, data or agreement to proposals by The buyer, Delmec Engineering Ltd. shall not be liable for the consequences of The buyer’s failure to so act or respond on time, in full or in part.
3.1 The price for the Equipment and Services will be Delmec Engineering Ltd.’s list price last published on the date on which that consignment of Equipment is dispatched to The buyer or the Services are provided unless a price has been quoted and agreed with Delmec Engineering Ltd. within the last 90 days.
3.2 Delmec Engineering Ltd. reserves the right, by giving notice to The buyer at any time before delivery, to increase the price of the Equipment or Services to reflect any increase in the cost to Delmec Engineering Ltd. which is due to any factor beyond its control (such as without limitation, foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) any changes in delivery dates, quantities or the Specifications for the Equipment or Services which is requested by The buyer or any delay caused by any of The buyer’s instructions or his failure to give Delmec Engineering Ltd. adequate information or instructions.
3.3 The price for the Services shall be exclusive of any accommodation, living or travelling expenses incurred by Delmec Engineering Ltd. as a result of the provision of the Services, for which Delmec Engineering Ltd. shall invoice the buyer separately unless Delmec Engineering Ltd.’s quotation includes such items.
3.4 The contract price is exclusive of value added tax or any similar taxes, levies or duties, which will be added to or charged on invoices at the appropriate rates.
4.1 This order when delivered will be followed and evidenced by invoices. All such invoices will be due and payable in full by the payment date. You, as the customer, agree to make known in writing to us any comments, complaints or other lawful objections which may delay the payment of any invoice raised by the payment date agreed for the operation of the sales ledger account we maintain for you. Delmec Engineering Ltd. has an obligation to respond to any such communications received. The time taken to respond and resolve such issues will not change the due date for payment of an invoice.
4.2 If any payment that is to be made by The buyer to Delmec Engineering Ltd. is overdue, interest will be chargeable on the sum due and interest previously applied, before and after judgement on a day to day basis at an annual rate of 5 per cent above the Bank of England base rate from time to time applicable, until the sum due, and the interest charged, are paid. In addition, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, Delmec Engineering Ltd. may charge a fee, in addition to any interest charge, in respect of any invoice, or debt, which is not paid on its agreed date.
4.3 Where any sum owed by The buyer to Delmec Engineering Ltd. under this or any other contract is overdue Delmec Engineering Ltd. may withhold any deliveries or the supply of Equipment or Services due to be made under this contract until arrangements as to payment or credit have been established which are satisfactory to Delmec Engineering Ltd.
4.4 Where the Equipment or Services are delivered or supplied in instalments, each delivery or supply shall constitute a separate contract and each contract shall be separately invoiced and payment will become due as above
4.5 Delmec Engineering Ltd. may set off against any monies due to it the value of any or all monies due from Delmec Engineering Ltd. to The buyer, at any time. To avoid doubt, for the purposes of this clause only, Buyer shall include subsidiary companies largely owned by the contract buyer and companies or firms under common ownership or control as the contract buyer.
4.6 Where the contract provides for the supply of Equipment and also the supply of services, Delmec Engineering Ltd. may invoice the buyer for any equipment delivered notwithstanding that the completion of the services remains to be actioned.
Delmec Engineering Ltd. will, without prejudice to any other remedy available to it, have in respect of all unpaid debts due from The buyer a general lien on all The buyer’s property in the Seller’s possession for whatever purposes and whether worked upon or not and be entitled, on the expiration of not less than 14 days’ notice in writing to The buyer, to dispose of such property and to apply the proceeds towards the satisfaction of such debts.
6.1 Delivery of each consignment of Equipment shall be made to the place designated by the buyer when placing the order. Should Delmec Engineering Ltd. give notice to The buyer that Equipment are ready for collection, The buyer will arrange for the Equipment to be collected within 2 working days of such notice.
6.2 The Services shall be supplied at the place designated by the buyer when placing the order.
6.3 Unless otherwise agreed in writing, the price quoted by Delmec Engineering Ltd. for the Equipment shall be exclusive of the costs of delivery for which the buyer will be invoiced separately. Such delivery charges shall include the costs of freight, packaging, reels and insurance together with Delmec Engineering Ltd.’s handling charge.
6.4 Any dates quoted for delivery of the Equipment or supply of the Services are business estimates only and Delmec Engineering Ltd. will not be liable for any loss or damage whether direct, indirect or consequential or loss of profit, business, contracts, revenues, or savings howsoever arising sustained by The buyer as a result of Delmec Engineering Ltd.’s failure to comply with such delivery or supply times. Time for delivery, or supply, shall not be of the essence.
6.5 Where the Equipment or Services are to be delivered or supplied in instalments, each delivery or supply shall constitute a separate contract and failure by Delmec Engineering Ltd. to deliver or supply any one or more of the instalments in accordance with these Conditions or any claim by The buyer in respect of any one or more instalments shall not entitle The buyer to treat the Contract as a whole as repudiated.
6.6 If The buyer fails to take delivery of the Equipment then Delmec Engineering Ltd., without prejudice to any other rights or remedy it may have may either: –
6.6.1 Store the Equipment as set out in clause 8; or
6.6.2 sell the Equipment and after deduction of Delmec Engineering Ltd.’s reasonable storage and sale expenses charge the buyer for any shortfall below the Price due under the Contract.
6.6.3 And invoice the customer on usual payment terms for the value of the equipment to the extent that Delmec Engineering Ltd. shall have a liability to its suppliers.
6.7 Where work or services provided by Delmec Engineering Ltd. cannot be undertaken from the quoted or later agreed date of commencement as a result of the customer’s or buyer’s failure or inability to act, Delmec Engineering Ltd. reserves the right to charge all reasonable additional costs incurred as a result of the delays caused. This provision shall also apply if work or services are delayed during the course of completion as a result of the customer or buyer’s failure or inability to act. This provision will include any failure on the part of the customer or buyer to complete, or cause to have completed other works whose completion or progress is necessary for the works or services being provided by Delmec Engineering Ltd.
7. Risk and Property
7.1 The risk in the Equipment shall pass to the buyer upon delivery of the Equipment to The buyer or any carrier acting on its behalf. If The buyer fails to collect the Equipment from Delmec Engineering Ltd.’s premises on the date specified or it fails to take delivery or Delmec Engineering Ltd. is unable to despatch the Equipment because of The buyer’s acts or omissions, the risk in the Equipment shall still pass to The buyer at the time when it should have collected the Equipment or taken delivery.
7.2 The property in the Equipment shall not pass to the buyer until the full price of the Equipment, and equipment or services which are the subject of any other contract between Delmec Engineering Ltd. for which payment is due, is paid in full.
7.3 Until such time as the property in the Equipment passes to The buyer:-
7.3.1 they shall be held by The buyer in a fiduciary capacity and stored by The buyer at its premises in such a manner that they are clearly identifiable as Delmec Engineering Ltd.’s Equipment including by reference to the relevant serial numbers and shall be kept separate from any other equipment, whether or not supplied by Delmec Engineering Ltd., but The buyer shall be entitled to resell or use the Equipment in the ordinary course of its business; and
7.3.2 The buyer shall insure the Equipment to the full replacement value of the Equipment and shall note Delmec Engineering Ltd.’s interest on the policy; and
7.3.3 The buyer shall not pledge or charge the Equipment and if The buyer breaches this clause 7.3.3 the Price shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary; and
7.3.4 they shall be handed over to Delmec Engineering Ltd. on demand and Delmec Engineering Ltd. shall be entitled to re-take possession of them without prejudice to any of its other rights against The buyer, and Delmec Engineering Ltd. is granted a licence to enter into The buyer’s premises for the purpose of recovering the Equipment.
7.4 If the buyer fails to pay for the Equipment in accordance with these terms Delmec Engineering Ltd. will have the right to bring an action against the buyer for the price of the Equipment at any time notwithstanding that property in the Equipment has not passed to the buyer.
8.1 Delmec Engineering Ltd. shall be entitled to store the Equipment, or any of them, at The buyer’s expense at Delmec Engineering Ltd.’s premises or elsewhere if:
8.1.1 where The buyer is required to collect the Equipment from the Delmec Engineering Ltd.’s works, it fails to take delivery at the time specified;
8.1.2 where the arrangement is for the Equipment to be delivered by Delmec Engineering Ltd., either it is unable to despatch the Equipment by reason of the acts or omissions of The buyer, or Delmec Engineering Ltd. has despatched the Equipment but The buyer fails to take delivery;
8.1.3 Delmec Engineering Ltd. is withholding delivery of the Equipment pursuant to Conditions 4.3.
8.2 The expenses that Delmec Engineering Ltd. may re-claim from the buyer include all reasonable costs incurred by Delmec Engineering Ltd., whether by way of storage, insurance, administrative or otherwise in respect of the Equipment. It is expressly declared that it shall be reasonable for Delmec Engineering Ltd. to take out insurance in respect of the Equipment notwithstanding that the risk in the Equipment has passed to the buyer.
9. Intellectual Property
The buyer acknowledges that Delmec Engineering Ltd. retains ownership of any intellectual property rights in the Equipment or Services, and in any equipment, products or materials made available or produced as part of the Services.
10.1 Orders which have been accepted by Delmec Engineering Ltd. can only be cancelled by The buyer with the prior written agreement of Delmec Engineering Ltd. and on condition that The buyer shall indemnify Delmec Engineering Ltd. in full against all loss (including loss of profit), costs, including the cost of all labour and materials used, damages, charges and expenses incurred by it as a result of cancellation.
10.2 If The buyer enters into any voluntary arrangement with its creditors, becomes subject to an administration order, has a petition presented or an order made for its winding-up, has a receiver, administrator or administrative receiver appointed over all or any part of its undertaking or assets, goes into liquidation or ceases or threatens to cease to trade, then without prejudice to any other remedy available to Delmec Engineering Ltd., Delmec Engineering Ltd. shall have the right to cancel the Contract or suspend further deliveries under the Contract without any liability to The buyer. If the Equipment or Services have been delivered or supplied but not paid for, the price shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
10.3 If the buyer takes action in accordance with paragraph 10.2 above, Delmec Engineering Ltd. shall be entitled to exercise its options to recover costs, charge storage, levy interest on sums due and expect payment for all such from the buyer.
11. Force Majeure
Delmec Engineering Ltd. shall have the right to cancel or to reduce the volume of the Equipment delivered or Services supplied if Delmec Engineering Ltd. is prevented from or hindered in delivery of the Equipment or supply of the Services through any circumstances beyond its control, including, but not limited to, strike, lock-out or other industrial action, closure of any supplier to Delmec Engineering Ltd., war, fire, Act of God, prohibition or enactment of any kind, without incurring any liability whatsoever.
The buyer will have no right of set-off statutory or otherwise.
13. Governing Law
The contract is governed by Irish Law.
14. Third party rights
14.1 This Agreement does not create any right enforceable by any person not a party to it except a person who is the permitted successor to or assignee of the rights of a party is deemed to be a party to this Agreement.
Note: Delmec Engineering Ltd.’s prices are calculated on the basis that the above Conditions will apply. If the buyer requires prices to be quoted on a different basis it should inform Delmec Engineering Ltd.