1.DEFINITIONS AND CONSTRUCTION
In these Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings:
Artificial Grass Products
means any product manufactured or supplied by the Company which is composed of or contains artificial grasses.
means Deeward Limited, a private company incorporated in Ireland and limited by shares with Registered Number 305205 and having its registered Office at The Dockrell's Complex, Ballymount Road Upper, Dublin 24.
means the purchaser and user of the Product.
means the natural and man-made elements used by the Company in the manufacture of the Product. For the avoidance of doubt, the plural shall also include the singular (“Material”).
Natural Stone Products
means any product manufactured or supplied by the Company which is composed of or contains elements of natural granite, marble, or any other stone.
means the payment terms set out in Clause 4 of this Agreement.
means such stone, grass, wood and such other items as may from time to time be manufactured by the Company and offered to the Customer. For the avoidance of doubt, the singular shall also include the plural (“Products”).
means such trademarks, copyrights, technology rights and similar rights arising from or relating to the Product or Products.
means the location at which the Product shall be installed as advised by the Customer.
Special Order Product
means a Product which is supplied to the bespoke specifications of the Customer.
means the stage at which the Company can prepare or create templates based on the site and information provided by the Customer, to assist the Company in determining the appearance, dimensions, thickness, or any other aspect of the Product.
means the terms and conditions set out in this document.
Third Party Suppliers
means any suppliers of products or services to the Customer who are not part of the Company.
In this Agreement words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall, unless the context clearly indicates to the contrary, refer to the whole of this Agreement and not to any particular Section or Clause thereof.
Save as otherwise provided herein, any reference to a Section, Clause, paragraph or sub-paragraph shall be a reference to a Section, Clause, paragraph or sub-paragraph (as the case may be) of this Agreement and any reference in a Clause to a paragraph or sub-paragraph shall be a reference to a paragraph or sub-paragraph of the Clause or paragraph in which the reference is contained unless it appears from the context that a reference to some other provision is intended.
Any reference in this Agreement to a document includes that document as amended, substituted, restated or novated from time to time.
Any reference to any provision of any legislation shall include any modification re-enactment or extension thereof and shall also include any subordinate legislation made from time to time under such provision. Any reference to any provision of any legislation, unless the context clearly indicates to the contrary, shall be a reference to legislation of Ireland.
In this Agreement, the masculine gender shall include the feminine and neuter and the singular number shall include the plural and vice versa. References to persons shall include natural persons, firms, bodies corporate, unincorporated associations and partnerships, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality).
Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
3.APPLICATION OF THESE TERMS
These Terms shall apply to the supply of the Products by the Company to the Customer. The Customer agrees that these Terms shall apply and that no other terms, conditions, warranties or representations apply to its relations or commercial arrangements with the Company.
These Terms shall be deemed to have been accepted by the Customer upon the earlier of:-
the purchase by the Customer of the Products from the Company or
the Customer notifying the Company of its intention to commence or continue with the supply of the Product or
the Customer paying or continuing to pay any order, invoice or regular payment of the Company or
written acceptance by the Customer of these Terms.
The Company shall use its best endeavours to ensure that orders are dispatched to the Customer promptly. All orders are subject to Product availability, and the Company will not be liable for loss or damage of any kind caused by a delay in supply to the Customer, where that delay is outside the control of the Company.
Where the Product supplied consists of a Special Order Product, the Customer is solely responsible for verifying on-Site measurements and fit, and the Company accepts no liability whatsoever for any errors or omissions caused by the negligence or omission of the Customer in the provision of incorrect measurements, dimensions, thicknesses and specifications by the Customer.
The Customer agrees and accepts that owing to the bespoke nature of Special Order Products, pricing is subject to change in line with the nature of the Product selected, the specifications of the Customer and fit-out and other costs.
The Customer hereby acknowledges understands and accepts the provisions of Appendix A hereto and will not raise any claim in respect of matters set out therein.
The Customer further acknowledges and accepts that due to the bespoke nature of the Product, template measurements may be necessary. Any quotations provided by the Company are valid for 30 days unless otherwise noted and all pricing will be based on final measurements only, as estimates do not always match actual measurements.
5.PAYMENT TERMS AND RETURNS POLICY
The Customer shall agree to make payment of the Company’s invoices in accordance with the provisions of this clause and the Payment Schedule. Such payments shall be made by cheque or electronic transfer or as the Company shall from time to time direct.
Owing to the bespoke nature of worktop Products, the Company reserves the right to charge a flat fee of €150 for additional call-outs if the Site is not prepared, to the satisfaction of the Company or its agents, for the installation/delivery of the Product on the appointed date, or if the Company or its agents are unable to gain access to the Site.
For the avoidance of doubt the price to be agreed between the Customer and the Company does not include the charges for any service or services which are each quoted for and billed separately by the Company.
The Customer shall pay fees to the Company at the price agreed between the Customer and the Company. In the case of worktop Products, a deposit of 50% is due when the order is placed, with the balance due at Template Stage.
The Customer is not entitled to set off against any of the Company’s invoices for the Products any money owed by the Company to the Customer.
If the Customer is late in paying any of the Company’s invoices then the provisions of the EU Regulations (Late Payments in Commercial Transactions) 2012 shall apply and the Company shall be entitled to sue the Customer for all outstanding sums validly due and owing to the Company.
Until the Company receives full payment in respect of any overdue invoices for the Products, title in and to the Products shall not pass to the Customer and the Company shall be entitled to refuse to provide any further Products to the Customer until all outstanding sums due to the Company are paid. The Company shall also be entitled to take back its Products from the Customer which may involve the cancellation of ordered Product or the withholding of ordered Product.
The Customer shall not be entitled to delay or withhold any payment to the Company for any delay arising from the non-performance or non-delivery by any Third Party Suppliers or contractors.
The remedies available to the Company under these Terms are additional to its general rights and remedies under statute and by law.
The Customer acknowledges and accepts that if payments are made to the Company by cheque, no Product will be supplied until cleared funds are available to the Company.
The Customer acknowledges that the Product is supplied on a strict no-refunds and no-returns basis.
The Company accepts cash payments and payments by credit/debit card.
The Company hereby covenants that it shall use its reasonable endeavours to ensure that Product is provided, and orders dispatched to the Customer in a timely and prompt manner, and that the Product furnished shall be of good merchantable quality and free from obvious defect to the extent reasonably possible given the nature of the Product.
The Customer hereby covenants that it shall:-
pay the Company’s invoices as required by these Terms in relation to the Products purchased.
provide accurate information to the Company to enable the Company to provide the Products to the specifications and measurements desired by the Customer.
Use its best endeavours to ensure that the commercial sensitivity of the Products is protected. The Customer shall endeavour to ensure that no information regarding the composition, manufacture, make-up, or marketing of the Products is released to any third party.
8.TITLE AND OWNERSHIP
Title to and ownership of the Products shall at all times remain exclusively with the Company until such time as payment in full for the Product is received by the Company.
Title to and ownership of the Intellectual Property and promotional materials or promotional items and/or programs produced solely by the Company for the promotion of the Product or Products shall at all times be owned by the Company.
9.LIMITATION ON COMPANY’S LIABILITY
The Customer shall not rely on any representations or quotations which are not confirmed by the Company in writing. By accepting these Terms, the Customer irrevocably waives any right to claim damages from the Company or to rescind these Terms as a result of any representation whether or not contained in these Terms.
The Company reserves fully the right to effect a special limitation on liability in respect of Natural Stone Products (including but not limited to any tile Product) and Artificial Grass Products, owing to the bespoke nature of such Products and the natural variations that may occur from time to time in such Products. The Customer hereby acknowledges and accepts that Stone is inherently a natural substance that is created as a result of varying levels of geological stress over long periods and as a result, the Customer accepts variations in shading, veining and finish.
With regard to the supply of tile Product, it is the responsibility of the Customer to ensure that it has selected the desired shade/tone prior to the commencement of fit-out. The Company shall not be liable for errors on the part of the Customer in this regard, and the Company is not liable to make good any loss suffered by the Customer as a result of such errors.
With regard to Natural Stone Tile Product, the Customer agrees and accepts that there will be minor variations in the Product owing to the naturally-occurring substances inherent in the composition of the Product. The Customer agrees and accepts that such variation, where occurring, is a part of the Product, and does not in any way constitute a flaw or defect.
With regard to Artificial Grass Products, the Customer agrees and accepts that there will be minor variations in the Product supplied, owing to the fact that it contains natural and man-made elements. The Customer hereby acknowledges and accepts that artificial grass will in some circumstances curl, flatten and crush, and that this does not amount to a defect in the Product. Similarly, the Customer hereby acknowledges and accepts that colour variation does not constitute a defect in the Product.
The Company will not provide insurance cover against Products which are lost, damaged or stolen while in the care of the Customer. The Company will not be liable for post-supply damage to the Product caused by invasion or encroaching of tree roots, knotweed, animal burrows, or caused by excavation or building works of any kind.
The Company shall not in any circumstances be liable for any indirect, special or consequential loss or damage suffered by the Customer as a result of the Customers’ use of the Product, nor in respect of any loss of profit, loss of business opportunity, wasted overheads or similar costs or losses suffered by the Customer and howsoever caused.
Where an obvious fault is found in the Product supplied the liability of the Company will in all circumstances be limited to the value of the Product supplied. It is the responsibility of the Customer alone to inspect the condition of the Product when taking delivery. The Company will not entertain subsequent claims in this regard, and concerns regarding condition must be reported to the driver employed by the Company immediately. Where bespoke materials have been supplied to the Customer for use on- Site, it is the sole responsibility of the Customer to ensure that the bespoke Product supplied is as ordered and matches desired specifications.
It is the sole responsibility of the Customer to make arrangements for the collection and delivery and unloading of the Product at the destination address. The Company shall not be responsible for any loading on collection or for any loss or damage whatsoever, howsoever caused.
The Company accepts no liability for recommendations provided by the Company based on incorrect or incomplete measurements, dimensions, thicknesses, specifications or other relevant information provided by the Customer to the Company.
The Company makes no warranties or representations to the Customer that any services provided by the Company through telecommunication systems, computer systems or otherwise, will be un-interrupted or error free and the Company shall not be liable to the Customer for any loading or collection or for any loss or damage howsoever caused, or consequential losses arising to the Customer as a result.
The Customer agrees to fully indemnify, keep indemnified, defend (at the Company's request), and hold the Company, its parent, subsidiaries, affiliates, officers and employees, harmless from any claims, demands, losses, expenses (including but not limited to legal expenses) or liability incurred or sustained by the Company or any of its employees and agents, directly or indirectly, or made or brought by any third party due to or arising out of the following:
Customer’s breach of these Terms.
the Customer’s breach of its warranties under these Terms.
the Customer's fraudulent behaviour, wilful misconduct or negligence.
the violation of any Intellectual Property rights of the Company or any person or entity.
the use or misuse by the Customer or third parties of the Customer's passwords or accounts.
the use or misuse by the Customer or third parties of the Customer's passwords or accounts.
Without prejudice to the generality of the indemnity set out in Clause 12.1, the Customer shall fully indemnify the Company in respect of any breach of licence, copyright, patent, trademark or any other applicable law or regulation caused by the Customer’s use of the Company’s or any Third Party’s Intellectual Property.
Any notice or communication under these Terms required to be served on or given to either the Customer or the Company should be either delivered by hand, sent by first class post to the other party at its operating address(es) or to another address previously notified to the sending party, faxed to any fax number previously notified to the sending party, or sent by e-mail to such domain or e-mail address as it has previously notified to the sending party and should be deemed to have been given when actually received or, if sent by first class post, two full days after posting or, if sent by fax, upon receipt of the relevant fax confirmation sheet or, if sent by e-mail, upon receipt of a reply, acknowledgement or read receipt.
13.CUSTOMER OBLIGATIONS AT TEMPLATE AND FIT-OUT STAGE
The Customer specifically confirms and agrees that it bears sole responsibility for ensuring that all cabinets, work surfaces and suchlike have sufficient bracing before the commencement of fit-out or templating by the Company.
The Customer is solely responsible for the location or positioning of sinks, taps, pipes and suchlike, and these are to be advised to the Company prior to commencement of fit-out.
The Company does not accept any liability for de minimis damage to the Customer’s property caused by the necessary removal of plasterwork in the course of fit-out or templating. It is the sole responsibility of the Customer to make good any minor damage.
Any information supplied by the Customer to the Company such as templates, cut out dimensions, overhangs, splash backs, and positioning of cut outs at the time of templating or prior or subsequently given by other methods of communication is the Customer's responsibility and no liability whatsoever is assumed by the Company in respect of incorrectly advised dimensions.
Prior to Template Stage and installing, all temporary work surfaces must be removed, all sinks, hobs and taps must be disconnected, and the Customer is solely responsible for same and the Company reserves the right to charge for this work to be carried out, if not done before delivery to Site.
Any work carried out after templating such as plastering the walls or changing the location of cabinets, hobs, sinks and taps can affect the finished product and the Company reserves the right to charge for this to be rectified.
Save for those relating to payment, the obligations of the Company under these Terms shall be suspended during the period and to the extent that the Company is prevented or hindered from complying therewith by a Force Majeure Event. In these Terms "Force Majeure Event" shall mean any event beyond its reasonable control which may include but shall not be limited to: (1) acts of terrorism, insurrection, riots, civil unrest and military action; (2) the exercise of emergency powers by any local, regional or national governmental authority; (3) fire, flood, earthquake, storm and other natural disasters; (4) industrial action, strikes and lock-outs; (5) blockage or embargo; and (6) the failure or delay of supplies of power, fuel, transport, equipment, telecommunications systems, Internet or other goods and/or services (including any third party materials).
In the event of the Company being hindered or prevented from fulfilling its obligations under these Terms due to a Force Majeure Event, the Company shall give notice of suspension as soon as reasonably possible to the Customer stating the date and extent of such suspension and the cause thereof. The Company shall resume the performance of such obligations as soon as reasonably possible after the removal of the cause and shall so notify the Customer.
These Terms and any document referred to in these Terms constitutes the entire understanding between the parties with respect to the subject matter of these Terms and supersedes all prior agreements, contracts, negotiations and discussions between the parties relating to it.
Save as expressly provided in these Terms, no amendment or variation of these Terms shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.
The failure of a party to exercise or enforce any right under these Terms shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.
If any provision of these Terms (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19.ORDER COLLECTION AND STORAGE
The Customer is solely responsible for ensuring that the Product is collected in a vehicle suitable for and capable of carrying the Product, and one which is forklift-ready. The Product is transported at the Customer’s risk once loaded and is carried at the Customer’s own risk.
There is a charge of €300 payable to the Company per week where an order remains uncollected by the Customer for 4 weeks or longer.
The Company accepts no liability whatsoever in respect of loss of any nature whatsoever accruing to the Customer arising from delay, failure, or non-performance of third-party courier or delivery services.
Company may terminate these Terms immediately if:-
the Customer does not pay any sums due under these Terms on the due date.
the Customer is unable to pay its debts as they fall due or becomes the subject of any formal insolvency procedure (for example, receivership, liquidation, administration, voluntary arrangements or bankruptcy) or
Customer is in breach of any of its material obligations under these Terms.
The Company may terminate the Terms by giving one month’s notice in writing to the Customer of the Company’s intention to terminate the Terms pursuant to this Clause.
The Company may terminate the Terms by giving to the Customer seven days’ notice of the Company’s intention to terminate the Terms where the Customer has breached any provisions of the Terms including but not limited to the provisions relating to Payment set out in Clause 4 above.
Upon termination of the Terms, the Company will not make any refunds to the Customer and the Company shall be entitled to payment for the Services provided up to the date of termination of the Terms together with any damages incurred by the Company for any breaches of these Terms by the Customer.
21. LIMITED MANUFACTURERS WARRANTY AND EXCLUSIONS
The Company offers a limited manufacturers’ warranty on all Artificial Grass Products for a period of eight (8) years from date of installation. The Customer acknowledges and agrees that this Warranty is specifically excluded where the damage to the Product is caused by the following: -
use for any purpose other than landscaping purposes.
improper handling, storage, transportation, installation or repairs unless the improper conduct is perpetrated by the company or its authorised agents or
to the extent that any defect or damage is caused by any of the items listed in Appendix B to this Agreement.
22. GOVERNING LAW AND JURISDICTION
These Terms are governed by, and shall be construed in accordance with, the laws of Ireland and the Irish Courts shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any dispute, which may arise out of or in connection with these Terms.
The Customer agrees and accepts that save in the case of stone worktop products, payment in full is due to the Company prior to delivery.
PROVISIONS REGARDING THE BESPOKE NATURE OF THE PRODUCT OR PRODUCTS
The Customer acknowledges and agrees that the following provisions apply in respect of each of the Products listed below: -
The Company accepts no liability in respect of tile Product once affixed by the Customer. The Customer is solely responsible for ensuring that he/she/it is in possession of tiles which are of the desired shade and tone, and that he/she/it is in possession of a sufficient quantity of tiles, as the Company does not guarantee future stock availability. The Customer acknowledges and agrees that any samples provided by the Company are indicative only and may not be identical to current stock. The Company accepts no responsibility for the purchase of incorrect quantities of tile Product purchased by the Customer.
The Customer acknowledges and agrees that wood is a natural substance. The Customer acknowledges and agrees that there may be variations from time to time in the colour and knotting present in the wood.
The Customer acknowledges and agrees that Natural Stone paving is subject to variations in colour and thickness, which are inherent in the Product, and do not constitute a flaw or defect.
The Customer is solely responsible for ensuring that all desired dimensions and finishes are agreed with the Company prior to fit-out. No returns will be accepted in regard to sanitary ware.
Due to the molecular structure of the material, artificial grass creases when rolled. Creases will fall out within three months of delivery or installation. The Company will use best endeavours to reduce the visibility of seams in the Product. However, seams are occasionally visible due to the molecular structure of the material and seam visibility shall not constitute a defect in the Product.
The Customer acknowledges that the following provisions apply to worktop Products: -
The Customer accepts and agrees that owing to the bespoke nature of the Products, there will inevitably be minor differences in how each of the finished Products is presented. The Customer confirms and agrees that such minor differences in appearance arise due to the inherent nature of the Product itself, and such minor differences are in no way defects or flaws in the finished Product.
In some Materials, imperfections, “pitting” and even fossils can be apparent; these are in no way indicative of fault or defect in the Product and are part of the Material selected. All granite, marble and other Materials are sold subject to natural variations in colour, shade, veining and the amount of brecciation; they are stopped, filled, reinforced, etc in accordance with normal trade practices.
Samples should therefore be looked upon as a colour indication only. When the stone is extracted from the quarry the blocks are not a standard size. If pieces required cannot be cut in one, the Company reserves the right to place a joint in the most appropriate position. The Customer is responsible for the care and maintenance of the Product after delivery, and the Customer is advised to clean and seal Natural Stone Products effectively to avoid damage and staining; and
4. Most stone supplied by the Company is 30mm in thickness and most hobs supplied by manufacturers are in excess of this measurement. In the event that there is a need to alter the Material by routing / cutting out sections or providing extra braces, the Company reserves the right to charge an extra €50.00 per cabinet at time of installation.
LIMITATIONS TO MANUFACTURER’S WARRANTY
The Limited Manufacturer’s Warranty described in Clause 20 above shall not be enforceable where the damage to the Product or Products is caused by any of the following: -
- burns, cuts, accidents, vandalism, abuse, negligence or neglect
- Japanese knot weed, bamboo, mare’s tail, giant hogweed, tree root growth or any other external horticultural influence.
- Wild animals, including badgers, moles, foxes and any non-domestic pet
- Dogs, cats, rabbits or any other domestic pet
- Reflections from mirrors and/or glass onto the Product
- Subsidence caused by ground movement, local excavations and/or tree roots
- Improper design or failure of the sub-base of the sports field or court
- Drainage defects or deficiencies on the sub-base and/or its surrounding area
- Wear or abrasion caused by an inadequate sub-base
- Any harmful chemical reaction to the Product caused by infill materials
- The use of improper footwear or sports equipment
- The playing surface being used for any purpose other than that for which it was designed and installed
- The application of improper cleaning methods
- The use of cleaning chemicals, herbicides or pesticides
- Force majeure or other conditions beyond the reasonable control of the company; or
- Post fibrillation after or during installation for any purpose other than to put the infill materials in place