1.1 “Distributor” shall mean Irish Christmas Cards.com its successors and assigns or any person acting on behalf of and with the authority of Irish Christmas Cards.com. These Terms and Conditions shall apply to all contracts entered into by either of Irish Christmas Cards.com.
1.2 “Customer” shall mean the person or entity described as such on the invoices, application for credit, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall mean any person acting on behalf of and with the authority of such person or entity.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis. 1.4 “Goods” shall mean Goods supplied by the Distributor to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Distributor to the Customer.
1.5 “Services” shall mean all services supplied by the Distributor to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the cost of the Goods as agreed between the Distributor and the Customer subject to clause 3 of this contract.
2.1 Any instructions received by the Distributor from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Distributor shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be amended with the written consent of the Distributor.
2.4 The Customer undertakes to give the Distributor at least fourteen (14) days’ notice of any change in the Customer’s name, address and/or any other change in the Customer’s details.
3.1(a) The Distributor’s quoted Price must be accepted by the Customer in writing within thirty (30) days. The quoted Price is indicative only and may vary according to cost changes (including currency fluctuations) to the Distributor.
(b) The Price is as indicated on order acknowledgments and invoices provided by the Distributor to the Customer in respect of Goods supplied.
3.2 The Distributor may (in its sole discretion) require from 50% to 100% deposit in respect of any order.
3.3 (a) Save as provided in (b) below, the full balance payment shall be paid in cleared funds before delivery.
(b) The Distributor may in its discretion approve certain Customers to be account holders with the Distributor. In the case of Customers holding an account, the time for payment shall be 30/60 days from the date of the invoice, at the discretion of the Distributor. Interest shall be payable on overdue accounts at a rate of 5% per annum.The terms of clause 3.2 above shall apply to Customers holding an account. Where an account is overdue or outside the credit limit payment in full in cleared funds must be made in advance of delivery.
3.5 Payment will be made by cheque, or by bank draft, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Distributor.
3.6 VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.1 At the Distributor’s sole discretion delivery of the Goods shall take place when;
(a) the Customer takes possession of the Goods at the Distributor’s address or
(b) the Goods are delivered to the Customer’s address (in the event that the Goods are delivered by the Distributor or the Distributor’s nominated carrier); or
(c) The Customer’s nominated carrier takes possession of the Goods at the Distributor’s address in which event the carrier shall be deemed to be the Customer.
4.2 The costs of delivery are in addition to the Price and are payable by the Customer.
4.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery and shall ensure that the Customer is present to accept delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Distributor shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
4.5 The Distributor may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) The Price shall be adjusted pro rata to the discrepancy.
4.7 The failure of the Distributor to deliver shall not entitle either party to treat this contract as repudiated.
4.8 The Distributor shall not be liable for any loss or damage whatever due to failure by the Distributor to deliver the Goods (or any of them) promptly or at all.
5.1 All risk for the Goods passes to the Customer on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Distributor is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Distributor is sufficient evidence of the Distributor’s rights to receive the insurance proceeds without the need for any person dealing with the Distributor to make further enquiries.
6.1 It is the intention of the Distributor and agreed by the Customer that ownership of the Goods shall not pass until:
(a) the Customer has paid all amounts owing for the particular Goods, and
(b) The Customer has met all other obligations due by the Customer to the Distributor in respect of all contracts between the Distributor and the Customer.
6.2 Receipt by the Distributor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Distributor’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Distributor shall have received payment and all other obligations of the Customer are met; and
(b) Until such time as ownership of the Goods shall pass from the Distributor to the Customer the Distributor may give notice in writing to the Customer to return the Goods or any of them to the
Distributor. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Distributor shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) the Customer is only a bailee of the Goods and until such time as the Distributor has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Distributor; and
(e) the Customer shall not deal with the money of the Distributor in any way which may be adverse to the Distributor; and
(f) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Distributor; and
(g) the Distributor can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(h) Until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Distributor will be the owner of the end products.
(i) Until such time as ownership in the Goods passes to the Customer, the Distributor shall be entitled to enter onto the property where the Goods are located to inspect same. Where practicable the
Distributor shall give advance notice of its intention to do so.
7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Distributor and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment. Any assistance or advice in relation to the Goods is given only by way of assistance and the Distributor excludes all liability in respect of same.
8.1 The Customer shall inspect the Goods on delivery and shall within twenty four hours notify the Distributor in writing of any alleged defect, shortage in quantity, damage or failure to com ply with the description or quote. The Customer shall afford the Distributor an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Distributor has agreed in writing that the Customer is entitled to reject, the Distributor’s liability is limited to either (at the Distributor’s discretion) replacing the Goods or repairing the Goods.
The Distributor may (in its discretion) accept the return of Goods for credit or refund subject to the following:
9.1 Subject to the provisions of 9.2 hereof returns will only be accepted provided that:
(a) the Distributor has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Customer’s cost within fifteen (15) days of the delivery date; and
(c) the Distributor will not be liable for Goods which have not been stored or used in a proper manner; and
(d) The Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Returns will only be accepted for standard stock items. In particular returns will not be accepted in any circumstance for bespoke items (being items made to order or made to measure at the Customer’s request), shower doors, bathroom furniture, specialist tiles and stones, display items, items which are no longer in stock or where the batch number is no longer in stock or any items specifically ordered for the Customer.
9.3 The Distributor may (in its discretion) accept the return of Goods for credit or refund but this may incur a handling fee of up to 50% of the value of the returned Goods plus any freight at the sole discretion of the Distributor.
10.1 For Goods not manufactured by the Distributor, the only warranty shall be the current warranty (if any) provided by the manufacturer of the Goods. The Distributor shall not be bound by or responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods and all such terms, conditions, representations and warranties are hereby excluded. A copy of the relevant manufacturer’s warranty shall be available on request.
10.2 To the extent permitted by statute, no warranty is given by the Distributor as to the quality or suitability of the Goods for any purpose and any implied warranty is expressly excluded. The Distributor shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11.1 This agreement is subject to the provisions of the Sale of Goods Act 1893 and the Sale of Goods and Supply of Services Act 1980 (the “Acts”) in all cases except where the Customer is contracting within the terms of a trade/business (in which case the Acts are specifically excluded).
11.2 Notwithstanding clause 11.1 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Sale of Goods Act 1893 (in particular sections 12-15), or the Sale of Goods and Supply of Services Act 1980, or any laws or legislation governing the rights of consumers, except to the extent permitted by those Acts laws or legislation.
11.3 In particular where the Customer buys Goods as a consumer the provisions of Clauses 8, 9 and 10 above shall be subject to any laws or legislation governing the rights of consumers.
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of .5% per annum and such interest shall compound monthly at such a rate after as well as before any judgment.
12.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Distributor from and against all costs and disbursements incurred by the Distributor in pursuing the debt including legal costs on a solicitor and own client basis and the Distributor’s collection agency costs.
12.3 Without prejudice to any other remedies the Distributor may have, if at any time the Customer is in breach of any obligation (including those relating to payment); the Distributor may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Distributor will not be liable to the Customer for any loss or damage of any nature or kind which the Customer suffers because the Distributor exercised its rights under this clause.
12.4 Without prejudice to the Distributor’s other remedies at law the Distributor shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Distributor shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Distributor becomes overdue, or in the Distributor’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its Creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) A receiver, manager, liquidator (provisional or otherwise), examiner or similar person is appointed in respect of the Customer or any asset of the Customer.
The Distributor shall not be liable to the Customer for any loss or damage suffered by the Customer as a result of the exercise by the Distributor of its rights under this Clause.
13.1 Despite anything to the contrary contained herein or any other rights which the Distributor may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Distributor or the Distributor’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Distributor (or the Distributor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should the Distributor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Distributor from and against all the Distributor’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Distributor or the Distributor’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 The Distributor may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice the Distributor shall repay to the Customer any sums paid in respect of the Price. The Distributor shall not be liable for any loss or damage whatever arising from such cancellation.
15.1 The Customer and the Guarantor/s (if separate to the Customer) authorise the Distributor to:
(a) collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
(b) to disclose information about the Customer, whether collected by the Distributor from the Customer directly or obtained by the Distributor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing (whether before or after judgement) a default by the Customer on publicly accessible credit reporting databases.
15.2 Where the Customer is an individual the authorities under (clause 15.1) are authorities or consents for the purposes of the Data Protection Act 1988 & Data Protection Act 2003.
15.3 The Customer shall have the right to request the Distributor for a copy of the information about the Customer retained by the Distributor and the right to request the Distributor to correct any incorrect information about the Customer held by the Distributor.
16.1 All literature, samples, specifications, dimensions and weights submitted with the Distributor’s quotation are approximate only and the data and descriptions contained in catalogues and other advertising material while being as accurate as possible may not necessarily be identical with products and services the Distributor supplies, and the Distributor reserves the right to supply products that have minor modifications in specifications as the Distributor sees fit.
16.2 The descriptions, illustrations and performances contained in catalogues, other advertising material and price lists do not form part of the contract of sale of the Goods.
17.1 On occasion at the request of the Customer the Distributor may provide assistance in relation to certain design matters concerning the Goods and separate charges apply. Such assistance is not to be construed as advice and all responsibility for design matters rest with the Customer. All loss, damage, claims, and liability of every nature and kind of the Distributor in respect of design matters is hereby excluded.
17.2 Installation is provided by the Distributor in exceptional circumstances only and separate charges apply. The liability of the Distributor in such exceptional cases in limited to the price of the Goods and the exclusions of liability contained in these Terms and Conditions apply in full to such installation in particular Clauses 10 and 18 hereof.
17.3 Where the Distributor recommends another party to carry out installation work, such recommendation is given without any liability on the part of the Distributor and the sole responsibility of selecting the party rests with the Customer.
18.1 The Distributor shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Distributor of these terms and conditions.
18.2 In the event of any breach of these terms and conditions by the Distributor the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Distributor exceed the Price of the Goods.
19.1 The Distributor reserves the right to defer the date of delivery or to cancel the contract or reduce the volume of Goods ordered by the Customer (without liability to the Distributor) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Distributor, including, without limitation acts of God, governmental actions, war or national emergencies, acts of terrorism, protests, ,riots, civil commotion, fire, explosion, flood, epidemic, lockouts, strike, or other labour disputes (whether or not relating to either party’s workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or in the event of the operation of a force majeure clause in any contract between the Distributor and a supplier of the Goods or any components of the Goods.
20.1 Each clause of this contract is severable and distinct from the others. If any provision of these terms and conditions is or becomes invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Ireland and are subject to the jurisdiction of the courts of Ireland.
20.3 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Distributor.
20.4 The Distributor may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.5 The Distributor reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Distributor notifies the Customer of such change. Except where the Distributor supplies further Goods to the Customer and the Customer accepts such Goods, the Customer shall be under no obligation to accept such changes.