THE BUYER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 11.
In these terms and conditions (from now on referred to as "Conditions" ) the following expressions shall have the following meanings and the rules of interpretation shall apply.
1.11. "BUYER" the person, firm or company who purchases the Goods from the Seller;
1.2. "CATALOGUE" the Seller's catalogue as may be amended from time to time;
1.3. "CONTRACT" the Buyer's Order and the Seller's acceptance of it in accordance with Clause 2 incorporating these Conditions;
1.4. "FORCE MAJEURE" circumstances beyond the reasonable control of the Seller which prevents the Seller from performing its obligations under the Contract including strikes, lock-outs, labour disputes, act of God, including but not limited to, fire, flood, or storm, war, riot, civil commotion, malicious damage, or the order of any government or public or local authority;
1.5. "GOODS" any goods agreed in the Contract to be supplied to the Buyer by the Seller;
1.6. "Intellectual Property Rights" a , any patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
1.7. "ORDER" an order for the Goods from the Buyer to the Seller;
1.8. "SELLER" means Dalvie Storage Systems Limited (Company Number: 4096375) whose Registered Office is at Dalvie Storage Systems Ltd, 6 Newton Court, Westrand, Pendeford Business Park, Wolverhampton WV9 5HB.
2.1. Each Order for Goods from the Buyer to the Seller shall be an offer by the Buyer to purchase the Goods and these Conditions will apply. The Contract between the Buyer and the Seller will be on these Conditions only (unless varied by Clause 2.3). No other terms and conditions will apply including any terms or conditions contained in or referred to in the Buyer's purchase order, confirmation of order or other document or implied by law, custom, practice or course of dealing or simply as a result of such document being referred to in the Contract.
2.2. No Order placed by the Buyer shall be considered to be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller provides the Goods to the Buyer.
2.3. These Conditions apply to all the Seller's sales and any variation to these Conditions and any statements made by the Seller or its employees about the Goods shall not be binding on the Seller unless agreed in writing and signed by authorised representative of the Seller.
2.4. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this Clause shall exclude or limit the Seller's liability for fraudulent misrepresentation.
Orders may only be cancelled with the Seller's consent and in accordance with these Conditions
3.1. 30 Day Money Back guarantee: In addition to Clauses 3.3 and 10.2, the Buyer may return the Goods at any time within 30 days, beginning on the day the Goods are delivered if it is not satisfied with the Goods. Goods returned as part of the Seller's 30 day money back guarantee may be returned free of charge but must be unused, re-saleable and in the original packaging otherwise handling charges will be incurred. This free of charge returns policy only applies to goods delivered to mainland UK.
3.2. The Guarantee in Clause 3.1, does not apply to Goods manufactured to the Buyer's specific requirements.
3.3. Consumer rights to cancel: Where the Buyer is a consumer and has purchased the Goods via telephone, internet, post or other non face to face situation the Buyer may cancel the Contract at any time within seven working days, beginning on the day after the Buyer received the Goods and will receive a full refund of any price paid for the Goods. To cancel the Contract, the Buyer must inform the Seller in writing and return the Goods to the Seller immediately, in the same condition in which it received them, and at the Buyer's own cost and risk. The Buyer has a legal obligation to take reasonable care of the Goods while they are in its possession. If the Buyer fails to comply with this obligation, the Seller may have a right of action against the Buyer for compensation.
4.1. The description of the Goods shall be as set out in the Catalogue. All samples, drawings, descriptive matter, technical data, dimensions weights, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Catalogue is issued or published as a guide and for illustrative purposes only and do not form part of the Contract.
4.2. Any typographical, clerical or other error or omission in any sales literature, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
4.3. The Seller reserves the right to discontinue any Goods or to alter the specification, design or construction of any Goods.
5.1. Unless otherwise agreed by the Seller in writing, prices for Goods are as listed in the Seller's Catalogue or website dalviestore.com from which the Goods are purchased current at the date of dispatch of the Goods. Prices are not guaranteed although every effort will be made to maintain them.
5.2. Unless otherwise specified the price for all Goods in the Catalogue are exclusive of Value Added Tax and shall be payable in addition to the price of the Goods.
5.3. Unless otherwise specified the price for the Goods shall include standard delivery to UK mainland addresses (except as detailed in clause 5.5). Delivery to Northern Ireland will be charged at 10% of order value. Delivery to all other destinations by arrangement.
5.4. In the event that the Seller incurs additional costs in supplying the Goods to the Buyer due to unforeseen circumstances not specified or known by either party on the date of Order the Buyer will pay such additional costs when it is due to pay for the Goods.
6.1. The price for the Goods, Value Added Tax and any carriage charges are strictly net and payment is due in full without any deductions (whether by way of set-off, counterclaim, discount, abatement or otherwise) by the 20th day of the month following invoice date (subject to credit status), when the full invoice value becomes due.
6.2. Should credit status not be met, payment is required in advance of Goods dispatch.
6.3. If the Buyer fails to pay the Seller any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Seller on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Lloyds TSB Plc.
6.4. Time for payment of the price shall be of the essence of the Contract.
7.1. Unless otherwise agreed in writing by the Seller, delivery of the Goods shall take place at the address set out in the delivery note only & the Buyer will be responsible for off-loading the Goods.
7.2. Next Day Delivery: Next day delivery applies to Goods in stock at the time of Order and to those Goods to which next day delivery applies i.e. Goods marked with the next day delivery logo in the Catalogue or on the Seller's website. For all other Goods, the Seller shall use its reasonable endeavours to advise the Buyer of a delivery date for the Goods. Any dates specified by the Seller for delivery of the Goods are an estimate only.
7.2a. Next day delivery applies to all stocked items ordered before 4.00pm. Next day delivery is available within the areas marked in orange, all other areas should expect delivery within 48 hours.
7.3. If next day delivery does not apply or no dates are so specified, delivery shall be within a reasonable time of acceptance of the Order.
7.4. Time is not of the essence as to the delivery of the Goods. This means that if the Seller fails to deliver the Goods in the time specified, the Buyer is not entitled to terminate the Contract and the Seller is not liable for any delay in delivery, however caused.
7.5. Delivery shall be made by the Seller or a courier nominated by the Seller during normal business hours (excluding bank or public holidays). The Seller may levy additional charges for any deliveries made at the Buyer's request outside such hours.
7.6. Special off-shore delivery shall be agreed in writing between the Buyer and Seller prior to delivery.
7.7. For purposes of this Clause, the Goods will be deemed delivered and accepted once the Goods are signed for by the Buyer.
7.8. If the Buyer will not accept delivery of any of the Goods when they are ready for delivery risk in the Goods will pass to the Buyer and the Goods will be deemed to have been delivered. The Buyer will be liable for any costs incurred by the Seller in storing the Goods where the Buyer does not accept delivery (including redelivery, storage and insurance costs).
7.9. The Seller reserves the right to make partial deliveries. The Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.
7.10. The Seller shall be responsible for any damage, shortage or loss in transit, provided that the Buyer notifies it to the Seller (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Goods and that the Goods have been handled in accordance with the Seller's stipulations. Any remedy under this Clause 7.10 shall be limited, at the option of the Seller, to the replacement or repair of any Goods which is proven to the Seller's satisfaction to have been lost or damaged in transit.
8.1. The quantity of any consignment of Goods recorded by the Seller upon despatch from the Seller's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving otherwise.
8.2. The Seller shall not be liable for any non-delivery of Goods unless the Buyer notifies the Seller in writing of the failure to deliver within 5 days after the scheduled delivery date.
8.3. Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata agreement rate against any invoice raised for such Goods.
9.1. The Goods are at the risk of the Buyer from the time of delivery.
9.2. Ownership of the Goods shall pass to the Buyer on the later of completion of delivery or when the Seller has received in full in cleared funds all sums due to it in respect of:
9.2.1. the Goods; and all other sums which are or which become due to the Seller from the Buyer on any account.
9.3. Until ownership of the Goods has passed to the Buyer under Clause 9.2, the Buyer must:
9.3.1. hold the Goods on a fiduciary basis as the Seller's bailee;
9.3.2. store the Goods (at no cost to the Seller) in satisfactory conditions and separately from all other products of the Buyer or any third party so that they remain readily identifiable as the Seller's property;
9.3.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
9.3.4. keep the Goods insured on the Seller's behalf for its full price against all risks to the reasonable satisfaction of the Seller, and hold the proceeds of such insurance on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account. On request the Buyer shall produce the policy of insurance to the Seller.
10.1. Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given by the manufacturer to the Seller.
10.2. The Seller warrants that (subject to the other provisions of these Conditions) for a period of one (1) year from the date of purchase (the "Warranty Period" ) the Goods are free from defects of workmanship and materials. The Seller undertakes (subject to Clauses 10.3 and 10.4), at its option, to repair or replace the Goods which are found to be defective as a result of faulty materials or workmanship during the Warranty Period.
10.3. The Seller shall not be liable for a breach of the warranty in Clause 10.2 unless:
10.3.1. the Buyer gives written notice of the defect to the Seller, and, if the defect is as a result of damage in transit to the carrier, within three (3) days of the time when the Buyer discovers or ought to have discovered the defect; and
10.3.2. the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller at the Seller's cost for the examination to take place there.
10.4. The Seller shall not be liable for a breach of the warranty in Clauses 10.2 if:
10.4.1. the Buyer fails to give the written notice required under Clause 10.3.1 or the Buyer makes any use of Goods which it has given written notice about under Clause 10.3.1; or
10.4.2. it is established to the reasonable satisfaction of the Seller that the materials used in the manufacture of the Goods or workmanship was not defective,
10.4.3. the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, use or maintenance of the Goods or (if there are none) good trade practice;
10.4.4. the defect is by caused misuse or abuse of the Goods or by improper use of the Goods by the Buyer or use outside its normal application;
10.4.5. the defect arises due to normal wear and tear; or
10.4.6. the Buyer alters or repairs the Goods without the written consent of the Seller.
10.5. Any repaired or replacement Goods shall be under warranty for the unexpired portion of the 1 year period.
11.1. The following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
11.1.1. any breach of the Contract; and
11.1.2. any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
11.2. Nothing in these Conditions excludes or limits the liability of the Seller:
11.2.1. for death or personal injury caused by the Seller's negligence; or
11.2.2. for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
11.2.3. for fraud or fraudulent misrepresentation. or
11.3. All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
11.4. Subject to Clauses 11.2 the Seller shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
11.4.1. loss of profits; or
11.4.2. loss of business; or
11.4.3. depletion of goodwill or similar losses; or
11.4.4. loss of anticipated savings; or
11.4.5. loss of goods; or
11.4.6. loss of contract; or
11.4.7. loss of use; or
11.4.8. loss or corruption of data or information; or
11.4.9. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.5. Subject to Clause 11.2, the Seller's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 1.5 times the price paid for the Goods by the Buyer during the 12 months preceding the date acknowledged by the Seller as being the date of the event giving rise to any liability.
12.1. The Buyer acknowledges that all Intellectual Property Rights created, subsisting or used in the Catalogue, the Seller's website and in connection with the Goods shall remain the sole property of the Seller. For the avoidance of doubt, the Buyer shall not during or at any time after the completion, expiry or termination of the Contract in any way question or dispute such ownership thereof by the Seller.
13.1. The Buyer may access, download and store on a temporary basis pages from the Seller's website solely for the purpose of ordering the Goods. Any permanent storage, copying or redistribution of any of the information set out in the Seller's website is strictly prohibited.
13.2. The Buyer may print off one copy and may download extracts, of any page(s) from the Seller's website for reference, The Buyer must not modify the copies of any materials printed off or downloaded in any way and must not use any illustrations, photographs or any graphics.
13.3. The Buyer may not modify any details on the Seller's website or reproduce or publicly display or distribute any such details for any commercial purpose whatsoever.
13.4. It is the Buyer's responsibility to virus check all materials before downloading them from the Seller's website.
13.5. Where the Buyer's website contains links to other sites and resources provided by third parties, these links are provided for information only. The Seller has no control over the contents of those sites or resources, and accepts no responsibility for them or for any loss or damage that may arise from the Buyer's use of them.
13.6. The Buyer and third parties must obtain the express written permission of the Seller before linking to the Seller's website.
14.1. If the Seller is affected by Force Majeure it shall promptly notify the Buyer.
14.2. Notwithstanding any other provision of these Conditions, if the Seller is prevented from or delayed in carrying on its business by Force Majeure and it has notified the Buyer then the Seller:
. 14.2.1. may defer the delivery date, cancel the Contract or reduce the amount of Goods ordered;
. 14.2.2. shall not be deemed to be in breach of the Contract or be liable to the Buyer for any delay in performance or non-performance of its obligations under the Contract and the time for performance of such obligations shall be extended accordingly.
15.1. Any notice required to be given under the Contract shall be in writing and delivered by hand, first class post or fax and addressed to the recipient at the address set out in the Order or such address or fax number as either party may specify to the other. A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. Notices by fax shall be deemed to have been received at the time of transmission.
15.2. Notice may also be given by e-mail address. In proving the service of any notice by e-mail, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
16.1. It is acknowledged and agreed that the Contract (including the documents and instruments referred to herein) ("the Documents") shall supersede all prior representations arrangements understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto;
16.2. The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently);
16.3. It is further acknowledged and agreed that no representations arrangements understandings or agreements (whether written or oral) made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents.
17.1. The Seller may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2. Any failure by the Seller to exercise or enforce its right under the Contract shall not be a waiver of that right, nor prevent Seller from exercising or enforcing such right at a later time.
17.3. Should any clause in these Conditions be held to be invalid or unenforceable such finding shall not affect the validity of the remaining clauses and provisions of these Conditions.
17.4. The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
17.5. These Conditions shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the exclusive jurisdiction of the English Courts.
18.1. The placing of orders from catalogues and the online store will require the buyer to provide the seller with the buyer's name and address and other relevant information. Personal information provided by the buyer, and any other relevant information relating to the buyer, will be held by the seller and may be used for marketing purposes including market research, or occasionally shared with other organisations in the prevention of fraud. Such information my also be disclosed to carefully selected third parties who may contact the Buyer for marketing purposes by mail, telephone or e-mail. Buyers who do not wish to be contacted by such third parties should advise the Seller when ordering.
19.1. Promotions cannot be used in conjunction with any other offer, promotion or pricing agreement. Promotional items are subject to availability and we reserve the right to substitute for an alternative product. Only 1 gift can be claimed per order.
19.2. Any incentive product provided as a result of placing a sales order with Dalvie Storage Systems Limited is provided directly to the ordering company. If the incentive product is then given to an employee by the company, the company will be liable for any Income Tax, National Insurance contributions and any other taxes and deductions payable in respect of the value of the incentive product or for any sums as may be required by law.