Davroc Limited
TERMS & CONDITIONS
The customers attention is drawn in particular to the provisions of clause 8.
1. Interpretation
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday
in England, when banks
in London are open for business.
Conditions: the terms and conditions set out in
this document as amended from time to time in
accordance with clause 12.3.
Consumer: an individual acting for purposes
which are wholly or mainly outside that
individual’s trade, business, craft or profession.
Contract: the contract between the Supplier and
the Customer for the sale and purchase of the
Goods in accordance with these Conditions.
Control: has the meaning given in section 1124 of
the Corporation Tax Act 2010, and the expression
change of Control will be construed
accordingly.
Customer: the person or firm who purchases the
Goods from the Supplier and, in the case of
credit account customers, whose details are set
out in the account application form overleaf.
Delivery Location: has the meaning given in
clause 4.1.
Force Majeure Event: an event, circumstance or
cause beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in
the Order.
Order: the Customer's order for the Goods, as
set out in the Customer's purchase order form,
the Customer's written acceptance of the
Supplier's quotation, or overleaf, as the case may
be.
Standard Order: any Order for standard,
non-bespoke Goods as the Goods are shown or
described in the Supplier’s catalogues.
Special Order: any Order which includes any
non-stocked items or Goods that are to be
manufactured in accordance with a Specification
involving the modification of standard goods as
shown or described in the Supplier’s catalogues.
Specification: any specification for the Goods,
including any related plans and drawings, that is
agreed in writing by the Customer and the
Supplier.
Supplier: Davroc Limited (registered in England
and Wales with company number 01477993).
1.2 Interpretation:
1.2.1 A reference to:
(a) a person includes a natural person,
corporate or unincorporated body (whether or
not having separate legal personality);
(b) a party includes its successors and
permitted assigns;
(c) legislation or a legislative provision is a
reference to it as amended, extended or
re-enacted from time to time and will include all
subordinate legislation made from time to time
under that legislation or legislative provision; and
(d) writing or written includes email.
1.2.2 Any words following the terms
including, include and in particular or any similar
expression will be construed as illustrative and
will not limit the sense of the words, description,
definition, phrase or term preceding those terms.
2. Basis of Contract
2.1 These Conditions apply to the
Contract to the exclusion of any other terms that
the Customer seeks to impose or incorporate, or
which are implied by law, trade custom, practice
or course of dealing.
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2.2 The Order constitutes an offer by the
Customer to purchase the Goods in accordance
with these
Conditions. The Customer is responsible for ensuring
that the terms of the Order and any applicable
Specification are complete and accurate.
2.3 The Order will only be deemed to be
accepted:
2.3.1 if the Order is a Standard Order, when the
Supplier issues a written acceptance of the Order; or
2.3.2 if the Order is a Special Order, when the
Customer has returned to the Supplier a signed copy
of the Specification and the Supplier then issues a
written acceptance of the Order based on that
Specification,
at which point the Contract will come into existence.
2.4 The Customer waives any right it might
otherwise have to rely on any term endorsed upon,
delivered with or contained in any documents of the
Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter
or advertising produced by the Supplier and any
descriptions or illustrations contained in the Supplier's
catalogues or brochures are produced for the sole
purpose of giving an approximate idea of the Goods
referred to in them. They will not form part of the
Contract nor have any contractual force.
2.6 A quotation for the Goods given by the
Supplier will not constitute an offer. A quotation will
only be valid for a period of 30 days from its date of
issue.
2.7 By entering into this Contract, the
Customer acknowledges that it is not acting as a
Consumer. If the Customer has any reason to believe
that it is or may be acting as a Consumer in any of its
dealings with the Supplier, it will inform the Supplier
immediately.
2.8 Any advice or recommendations given by
the Supplier or its employees or agents relating to the
suitability of the Goods is supplied in good faith but
the Customer must satisfy itself that the Goods are
suitable for the intended purpose.
3. Goods
3.1 The Goods are shown or described in:
3.1.1 the Supplier's catalogue(s) in the case of
standard Goods; or
3.1.2 the Specification, in the case of bespoke
Goods.
3.2 To the extent that the Goods are to be
manufactured in accordance with a Specification
supplied by the Customer, the Customer will
indemnify the Supplier against all liabilities, costs,
expenses, damages and losses (including any direct,
indirect or consequential losses, loss of profit, loss of
reputation and all interest, penalties and legal and
other professional costs and expenses) suffered or
incurred by the Supplier in connection with any claim
made against the Supplier for actual or alleged
infringement of a third party's intellectual property
rights arising out of or in connection with the
Supplier's use of the Specification. This clause 3.2 will
survive termination of the Contract.
3.3 The Supplier reserves the right to amend
the Specification if required by any applicable
statutory or regulatory requirement, and the Supplier
will notify the Customer in any such event.
4. Delivery
4.1 The Supplier will deliver the Goods to the
location set out in the Supplier’s written acceptance
of the Order given pursuant to clause 2.3 or such
other location as the parties may agree (Delivery
Location) at any time after the Supplier notifies the
Customer that the Goods are ready.
4.2 The Supplier will bear the carriage costs of
the Goods to the Delivery Location if:
4.2.1 the value of the Order exceeds £100 or
such other value threshold as the Supplier may set
from time to time for the purpose of this clause 4.2.1;
and
4.2.2 the Delivery Location is within the area
shown as attracting free delivery within the map on
the Supplier’s website at www.davroc.co.uk as at the
date of delivery; and
4.2.3 the Delivery Location is the address of
Customer’s main business premises as noted in the
Supplier’s written acceptance of the Order given
pursuant to clause 2.3 and not the address of any end
user of the Goods.
4.3 The Supplier will charge a fee to the
Customer for any costs associated with packaging or
duty. It will also charge a fee for the carriage costs of
any delivery which does not meet the requirements
for free delivery listed in clause 4.2 above.
4.4 Delivery is completed on the completion of
unloading of the Goods at the Delivery Location.
4.5 Any dates quoted for delivery are
approximate only, and the time of delivery is not of
the essence. The Supplier will not be liable for any
delay in delivery of the Goods that is caused by a
Force Majeure Event or the Customer's failure to
provide the Supplier with adequate delivery instructions
or any other instructions that are relevant to the
supply of the Goods.
4.6 If the Supplier fails to deliver the Goods, its
liability will be limited to the costs and expenses
incurred by the Customer in obtaining replacement
goods of similar description and quality in the
cheapest market available, less the price of the
Goods. The Supplier will have no liability for any
failure to deliver the Goods to the extent that such
failure is caused by a Force Majeure Event or the
Customer's failure to provide the Supplier with
adequate delivery instructions or any other instructions
that are relevant to the supply of the Goods.
4.7 If the Customer fails to accept delivery of
the Goods when the Goods are due and ready for
delivery, then, except where such failure or delay is
caused by a Force Majeure Event or the Supplier's
failure to comply with its obligations under the
Contract in respect of the Goods:
4.7.1 delivery of the Goods will be deemed to
have been completed at 9.00 am on the third
Business Day after the day on which the Supplier
notified the Customer that the Goods were ready;
and
4.7.2 the Supplier will store the Goods until
delivery takes place, and charge the Customer for all
related costs and expenses (including insurance).
4.8 If ten Business Days after the day on which
the Supplier notified the Customer that the Goods
were ready for delivery the Customer has not
accepted actual delivery of them, the Supplier may
resell or otherwise dispose of part or all of the Goods
and, after deducting reasonable storage and selling
costs, charge the Customer for any shortfall below
the price of the Goods.
4.9 The Supplier may deliver the Goods by
instalments, which will be invoiced and paid for
separately. Each instalment will constitute a separate
contract. Any delay in delivery or defect in an
instalment will not entitle the Customer to cancel any
other instalment.
5. Quality
5.1 The Customer acknowledges that the
Supplier is not the manufacturer of the Goods. The
Supplier will use all reasonable endeavours to pass on
to the Customer the benefit of any applicable
manufacturer warranty in connection with the Goods.
5.2 The Supplier warrants that on delivery, the
Goods will
5.2.1 conform in all material respects with their
description and any applicable Specification; and
5.2.2 be free from material defects in design,
material and workmanship.
5.3 Subject to clause 5.4, if the Supplier
agrees that any Goods are defective, the Supplier
will, at its option, repair or replace the defective
Goods, or refund the price of the defective Goods in
full provided that:
5.3.1 the Customer gives notice in writing to
the Supplier as soon as practicable after discovery of
such defect and in any event within 2 days of
delivery where the same is apparent from a
reasonable inspection of the goods and within 1
month of delivery where the defect is not apparent
from a reasonable inspection;
5.3.2 the Supplier is given a reasonable
opportunity of examining such Goods; and
5.3.3 the Customer (if asked to do so by the
Supplier) returns such Goods to the Supplier's place
of business at the Customer's cost.
5.4 The Supplier will not be liable for the
Goods' failure to comply with the warranty set out in
clause 5.2 if:
5.4.1 the Customer fails to inform the Supplier
promptly and in event within 7 days of becoming
aware of such failure unless the defect would have
been apparent from a reasonable external inspection
in which case paragraph 5.3 will apply with regard to
the time for notification;
5.4.2 the Customer makes any further use of
such Goods after giving notice in accordance with
clause 5.3;
5.4.3 the defect arises because the Customer
failed to follow the Supplier's oral or written
instructions as to the storage, commissioning,
installation, use and maintenance of the Goods or (if
there are none) good trade practice regarding the
same;
5.4.4 the defect arises as a result of the
Supplier following any drawing, design or Specification
supplied by the Customer;
5.4.5 the Customer alters or repairs such Goods
without the written consent of the Supplier;
5.4.6 the defect arises as a result of fair wear
and tear, wilful damage, negligence, or abnormal
storage or working conditions; or
5.4.7 the Goods differ from their description as
a result of changes made to ensure they comply with
applicable statutory or regulatory requirements.
5.5 Except as provided in this clause 5, the
Supplier will have no liability to the Customer in
respect of the Goods' failure to comply with the
warranty set out in clause 5.1.
5.6 The terms implied by sections 13 to 15 of
the Sale of Goods Act 1979 are, to the fullest extent
permitted by law, excluded from the Contract.
5.7 These Conditions will apply to any
repaired or replacement Goods supplied by the
Supplier.
6.1 The risk in the Goods will pass to the
Customer on completion of delivery.
6.2 Title to the Goods will not pass to the
Customer until the earlier of:
6.2.1 the Supplier receives payment in full (in
cash or cleared funds) for the Goods and any other
goods that the Supplier has supplied to the
Customer in respect of which payment has become
due, in which case title to the Goods will pass at the
time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which
case title to the Goods will pass to the Customer at
the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the
Customer, the Customer will:
6.3.1 store the Goods separately from all other
goods held by the Customer so that they remain
readily identifiable as the Supplier's property;
6.3.2 not remove, deface or obscure any
identifying mark or packaging on or relating to the
Goods;
6.3.3 maintain the Goods in satisfactory
condition and keep them insured against all risks for
their full price from the date of delivery;
6.3.4 notify the Supplier immediately if it
becomes subject to any of the events listed in
clause 10.1.2 to clause 10.1.4; and
6.3.5 give the Supplier such information as the
Supplier may reasonably require from time to time
relating to:
(a) the Goods; and
(b) the ongoing financial position of the
Customer.
6.4 Subject to clause 6.5, the Customer may
resell or use the Goods in the ordinary course of its
business (but not otherwise) before the Supplier
receives payment for the Goods. However, if the
Customer resells the Goods before that time:
6.4.1 it does so as principal and not as the
Supplier’s agent; and
6.4.2 title to the Goods will pass from the
Supplier to the Customer immediately before the
time at which resale by the Customer occurs.
6.5 At any time before title to the Goods
passes to the Customer, the Supplier may:
6.5.1 by notice in writing, terminate the
Customer's right under clause 6.4 to resell the
Goods or use them in the ordinary course of its
business; and
6.5.2 require the Customer to deliver up all
Goods in its possession that have not been resold,
or irrevocably incorporated into another product
and if the Customer fails to do so promptly, enter
any premises of the Customer or of any third party
where the Goods are stored in order to recover
them.
7. Price and Payment
7.1 The price of the Goods will be the price
set out in the Supplier’s written acceptance of the
Order given pursuant to clause 2.3, or, if no price is
quoted, the price set out in the Supplier's published
price list in force as at the date of delivery.
7.2 The price of the Goods:
7.2.1 excludes amounts in respect of value
added tax (VAT), which the Customer will additionally
be liable to pay to the Supplier at the prevailing
rate, subject to the receipt of a valid VAT invoice; and
7.2.2 subject to clause 4.2, excludes the costsand charges of packaging, insurance and transportof the Goods, which will be invoiced to theCustomer.7.3 The Supplier may invoice the Customerfor the Goods on or at any time after the completionof delivery.7.4 The Customer will pay each invoicesubmitted by the Supplier:7.4.1 on or before the last day of the ensuingmonth after delivery of the Goods; and7.4.2 in full and in cleared funds to a bankaccount nominated in writing by the Supplier, and7.5 time for payment will be of the essenceof the Contract.7.6 Debit notes will not be accepted underany circumstances due to the Supplier under the Contract by the due
date, then, without limiting the Supplier's remedies under clause 9, the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after
judgment. Interest under this clause 7.6 will accrue
each day at 8% a year above the base lending rate
of Lloyds TSB Bank Plc, but at 8% a year for any
period when that base lending rate is below 0%.
7.8 All amounts due under the Contract
will be paid in full without any set-off, counterclaim,
deduction or withholding (other than any
deduction or withholding of tax as required by
law).
8. Limitation of Liability
8.1 The restrictions on liability in this
clause 8 apply to every liability arising under or
in connection with the Contract including
liability in contract, tort (including negligence),
misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits any
liability which cannot legally be limited,
including liability for:
8.2.1 death or personal injury caused by
negligence;
8.2.2 fraud or fraudulent misrepresentation;
8.2.3 breach of the terms implied by
section 12 of the Sale of Goods Act 1979; or
8.2.4 defective products under the
Consumer Protection Act 1987.
8.3 Subject to clause 8.2, the Supplier's
total liability to the Customer will not exceed
the price paid by the Customer for the Goods
giving rise to the claim (excluding VAT).
8.4 Subject to clause 8.2, the following
types of loss are wholly excluded:
8.4.1 loss of profits;
8.4.2 loss of sales or business;
8.4.3 loss of agreements or contracts;
8.4.4 loss of anticipated savings;
8.4.5 loss of use or corruption of software,
data or information;
8.4.6 loss of or damage to goodwill; and
8.4.7 indirect or consequential loss.
8.5 This clause 8 will survive termination
of the Contract.
9. Notification of Claims
9.1 The Customer must notify the
Supplier and any third party carrier of any claim:
9.1.1 if the claim relates to any damage or
loss of goods in transit (including partial loss or
damage thereof), within two days of delivery; or
9.1.2 if the claim is in respect of non-delivery
of goods, within 2 days of advice of
dispatch.
10. Termination
10.1 Without limiting its other rights or
remedies, the Supplier may terminate this
Contract with immediate effect by giving
written notice to the Customer if:
10.1.1 the Customer commits a material
breach of any term of the Contract and (if such
a breach is remediable) fails to remedy that
breach within 7 days of that party being
notified in writing to do so;
10.1.2 the Customer takes any step or
action in connection with its entering administration,
provisional liquidation or any composition
or arrangement with its creditors (other
than in relation to a solvent restructuring),
obtaining a moratorium, being wound up
(whether voluntarily or by order of the court,
unless for the purpose of a solvent restructuring),
having a receiver appointed to any of its
assets or ceasing to carry on business or, if the
step or action is taken in another jurisdiction, in
connection with any analogous procedure in the
relevant jurisdiction;
10.1.3 the Customer suspends, threatens to
suspend, ceases or threatens to cease to carry on all or
a substantial part of its business;
10.1.4 the Customer's financial position deteriorates
so far as to reasonably justify the opinion that its
ability to give effect to the terms of the Contract is in
jeopardy; or
10.1.5 if there is a Change of Control of the
Customer.
10.2 Without limiting its other rights or remedies,
the Supplier may suspend provision of the Goods under
the Contract or any other contract between the
Customer and the Supplier if the Customer becomes
subject to any of the events listed in clause 10.1.2 to
clause 10.1.4, or the Supplier reasonably believes that
the Customer is about to become subject to any of
them, or if the Customer fails to pay any amount due
under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies,
the Supplier may terminate the Contract with
immediate effect by giving written notice to the
Customer if the Customer fails to pay any amount due
under the Contract on the due date for payment.
10.4 On termination of the Contract for any
reason the Customer will immediately pay to the
Supplier all of the Supplier's outstanding unpaid
invoices and interest and, in respect of Goods supplied
but for which no invoice has been submitted, the
Supplier will submit an invoice, which will be payable by
the Customer immediately on receipt.
10.5 Termination of the Contract, however arising,
will not affect any of the parties' rights and remedies
that have accrued as at termination, including the right
to claim damages in respect of any breach of the
Contract which existed at or before the date of
termination.
10.6 Any provision of the Contract that expressly
or by implication is intended to come into or continue in
force on or after termination of the Contract will remain
in full force and effect.
11. Force Majeure
The Supplier will not be liable for any delay in performing,
or failure to perform, any of its obligations under
the Contract if such delay or failure result from a Force
Majeure Event. In such circumstances the Supplier will
be entitled to a reasonable extension of the time for
performing such obligations.
12. General
12.1 Assignment and other dealings. The Supplier
may at any time assign, transfer, mortgage, charge,
subcontract, delegate, declare a trust over or deal in
any other manner with all or any of its rights or
obligations under the Contract. The Customer may not
assign, transfer, mortgage, charge, subcontract,
delegate, declare a trust over or deal in any other
manner with any or all of its rights or obligations under
the Contract without the prior written consent of the
Supplier.
12.2 Entire agreement. The Contract constitutes
the entire agreement between the parties and
supersedes and extinguishes all previous agreements,
promises, assurances, warranties, representations and
understandings between them, whether written or oral,
relating to its subject matter. Each party agrees that it
will have no remedies in respect of any statement,
representation, assurance or warranty (whether made
innocently or negligently) that is not set out in the
Contract. Each party agrees that it will have no claim
for innocent or negligent misrepresentation or
negligent misstatement based on any statement in the
Contract.
12.3 Variation. No variation of this Contract will
be effective unless it is in writing and signed by the
parties (or their authorised representatives).
12.4 Waiver. No failure or delay by a party to
exercise any right or remedy provided under the
Contract or by law will constitute a waiver of that or
any other right or remedy, nor will it prevent or restrict
the further exercise of that or any other right or
remedy. No single or partial exercise of such right or
remedy will prevent or restrict the further exercise of
that or any other right or remedy.
12.5 Severance. If any provision or part-provision
of the Contract is or becomes invalid, illegal or
unenforceable, it will be deemed deleted, but that will
not affect the validity and enforceability of the rest of
the Contract. If any provision of the Contract is
deemed deleted under this clause 12.5 the parties will
negotiate in good faith to agree a replacement
provision that, to the greatest extent possible,
achieves the intended commercial result of the original
provision.
12.6 Notices. Any notice given to a party under or
in connection with the Contract will be in writing and
will be delivered by hand or by pre-paid first-class post
or other next working day delivery service at its
registered office (if a company) or its principal place of
business (in any other case). Any notice will be deemed
to have been received: if delivered by hand, at the time
the notice is left at the proper address or if sent by
pre-paid first-class post or other next working day
delivery service, at 9.00 am on the second Business
Day after posting. This clause 12.6 does not apply to
the service of any proceedings or other documents in
any legal action or, where applicable, any arbitration or
other method of dispute resolution. A notice given
under the Contract is not valid if sent only by email.
12.7 Third party rights. Unless it expressly states
otherwise, the Contract does not give rise to any rights
under the Contracts (Rights of Third Parties) Act 1999
to enforce any term of the Contract. The rights of the
parties to rescind or vary the Contract are not subject
to the consent of any other person.
12.8 Governing law. The Contract, and any
dispute or claim (including non-contractual disputes or
claims) arising out of or in connection with it or its
subject matter or formation, will be governed by and
construed in accordance with the law of England and
Wales.
12.9 Jurisdiction. Each party irrevocably agrees
that the courts of England and Wales will have
exclusive jurisdiction to settle any dispute or claim
(including non-contractual disputes or claims) arising
out of or in connection with the Contract or its subject
matter or formation.