1.1. “Seller” shall mean Hotfoot Limited T/A Hotfoot – The Warmfloor Store its successors and assigns or any person acting on behalf of and with the authority of Hotfoot Limited T/A Hotfoot – The Warmfloor Store.
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 Seller 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 Seller to the Customer.
1.5. “Services” shall mean all services supplied by the Seller 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 Seller and the Customer subject to clause 3 of this contract.
- 2. Acceptance
2.1. Any instructions received by the Seller from the Customer for the supply of Goods and/or Services and/or the Customer’s acceptance of Goods and/or Services supplied by the Seller 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 Seller.
2.4. The Customer undertakes to give the Seller 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. Price and Payment
3.1. At the Seller’s sole discretion the Price shall be either;
a) as indicated on invoices provided by the Seller to the Customer in respect of Goods and/or Services supplied; or
b) the Seller’s quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days.
3.2. The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
3.3. At the Seller’s sole discretion a deposit may be required.
3.4. Time for payment for the Goods and/or Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.
3.5. At the Seller’s sole discretion;
a) payment shall be due on delivery of the Goods and/or Services, or
b) payment shall be due on completion; or
c) payment for approved Customers shall be made by instalments in accordance with the Seller’s payment schedule.
3.6. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Seller.
3.7. 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. Delivery of Goods and/or Services
4.1. At the Seller’s sole discretion delivery of the Goods and/or Services shall take place when;
a) the Customer takes possession of the Goods and/or Services at the Seller’s address or
b) the Customer takes possession of the Goods and/or Services at the Customer’s address (in the event that the Goods and/or Services are delivered by the Seller or the Seller’s nominated carrier); or
c) the Customer’s nominated carrier takes possession of the Goods and/or Services in which event the carrier shall be deemed to be the Customer’s agent.
4.2. At the Seller’s sole discretion the costs of delivery are;
a) included in the Price, or
b) in addition to the Price, or
c) for the Customer’s account.
4.3. The Customer shall make all arrangements necessary to take delivery of the Goods and/or Services whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods and/or Services as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
4.4. Delivery of the Goods and/or Services 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 Seller may deliver the Goods and/or Services 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 Seller to deliver shall not entitle either party to treat this contract as repudiated.
4.8. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods and/or Services (or any of them) promptly or at all.
- 5. Risk
5.1. If the Seller retains ownership of the Goods and/or Services nonetheless, all risk for the Goods and/or Services 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 Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
- 6. Title
6.1. It is the intention of the Seller and agreed by the Customer that ownership of the Goods and/or Services shall not pass until:
a) the Customer has paid all amounts owing for the particular Goods and/or Services, and
b) the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer.
6.2. Receipt by the Seller 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 Seller’s ownership or rights in respect of the Goods and/or Services shall continue.
6.3. It is further agreed that:
a) until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
b) the Seller shall have the right of stopping the Goods and/or Services in transit whether or not delivery has been made; and
c) the Customer is only a bailee of the Goods and/or Services and until such time as the Seller has received payment in full for the Goods and/or Services then the Customer shall hold any proceeds from the sale or disposal of the Goods and/or Services on trust for the Seller; and
d) the Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
e) the Customer shall not charge the Goods and/or Services in any way nor grant nor otherwise give any interest in the Goods and/or Services while they remain the property of the Seller; and
f) the Seller can issue proceedings to recover the Price of the Goods and/or Services sold notwithstanding that ownership of the Goods and/or Services may not have passed to the Customer.
- 7. Customer’s Disclaimer
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 Seller and the Customer acknowledges that the Goods and/or Services are bought relying solely upon the Customer’s skill and judgment.
- 8. Defects
8.1. The Customer shall inspect the Goods and/or Services on delivery and shall within ten (10) days notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods and/or Services within a reasonable time following delivery if the Customer believes the Goods and/or Services are defective in any way. If the Customer shall fail to comply with these provisions the Goods and/or Services shall be presumed to be free from any defect or damage. For defective Goods and/or Services, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods and/or Services or repairing the Goods and/or Services.
- 9. Returns
9.1. Returns will only be accepted provided that:
a) the Customer has complied with the provisions of clause 8.1; and
b) the Seller has agreed in writing to accept the return of the Goods; and
c) the Goods are returned at the Customer’s cost within ten (10) days of the delivery date; and
d) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
e) 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. The Seller may (in its discretion) accept the return of Goods for credit or refund but this may incur a handling fee of 30% of the value of the returned Goods plus any freight.
- 10. Warranty
10.1. Subject to the conditions of warranty set out in Clause 10.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) repair the defect or remedy the workmanship.
10.2. The conditions applicable to the warranty given by Clause 10.1 are:
a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- failure on the part of the Customer to properly maintain any Goods; or
- failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
- any use of any Goods otherwise than for any application specified on a quote or order form; or
- the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- fair wear and tear, any accident or act of God.
b) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
c) In respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.
10.3. For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
- 11. Sale of Goods Act 1893 and Sale of Goods and Supply of Services Act 1980
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 in all cases except where the Customer is contracting within the terms of a trade/business (which cases 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. Intellectual Property
12.1. Where the Seller has designed, drawn or written Goods and/or Services for the Customer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Customer at the Seller’s discretion.
12.2. The Customer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order.
13. Default and Consequences of Default
13.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
13.3. Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods and/or Services to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller exercised its rights under this clause.
13.4. If any account remains overdue after thirty (30) days then an amount of the greater of €20.00 or 10.00% of the amount overdue (up to a maximum of €200) shall be levied for administration fees which sum shall become immediately due and payable.
13.5. Without prejudice to the Seller’s other remedies at law the Seller 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 Seller shall, whether or not due for payment, become immediately payable in the event that:
a) any money payable to the Seller becomes overdue, or in the Seller’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) or similar person is appointed in respect of the Customer or any asset of the Customer.
- 14. Security and Charge
14.1. Despite anything to the contrary contained herein or any other rights which the Seller 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 all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’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 Seller (or the Seller’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 Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Seller’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 Seller or the Seller’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 14.1.
- 15. Cancellation
15.1. The Seller may cancel these terms and conditions or cancel delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
15.2. In the event that the Customer cancels delivery of Goods and/or Services the Customer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
- 16. Data Protection Act 1988 & Data Protection Act 2003
16.1. The Customer and the Guarantor/s (if separate to the Customer) authorises the Seller 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 Seller from the Customer directly or obtained by the Seller 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.
16.2. Where the Customer is an individual the authorities under (clause 16.1) are authorities or consents for the purposes of the Data Protection Act 1988 & Data Protection Act 2003.
16.3. The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect information about the Customer held by the Seller.
- 17. Unpaid Seller’s Rights
17.1. Where the Customer has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and the Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Seller shall have:
a) a lien on the item;
b) the right to retain the item for the Price while the Seller is in possession of the item;
c) a right to sell the item.
17.2. The lien of the Seller shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
- 18. Dimensions, Plans and Specifications
18.1. The Seller shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.
18.2. If the giving of an estimate or quotation for the supply of Goods and/or Services involves the Seller estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of the Seller’s estimated measurements and quantities, before the Customer places an order based on such estimate or accept such quotation.
18.3. Should the Customer require any changes to the Seller’s estimated measurements and quantities, the Customer shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
19. Customer’s responsibilities
19.1. It is the Customers responsibility to;
a) accept the recommended specifications of the Seller; and
b) ensure there is adequate access at the delivery point to accept the Goods; and
c) make the work site available on the agreed date and time. Should delivery be delayed or interrupted by the failure of the Customer to adhere to the delivery schedule agreed to between The Seller and the Customer then any additional costs will be invoiced to the Customer as an extra; and
d) provide adequate and safe access to the site for all workmen and equipment. Delays in gaining access to, or from, the site will attract chargeable downtime; and
e) have all areas clean and clear to enable scheduled work to be completed in accordance with the agreed schedule. The Seller is not insured to remove furniture or fittings and will not do so, nor is the Seller licensed to move gas or electrical appliances. Delays to the working process caused by the Customer, their employees or agents will result in chargeable downtime; and
f) remove all existing floor coverings, tacks and staples; and
g) fully disclose any information that may effect the Sellers installation and working procedures (including but not limited to disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used or the use of concrete over 25 mpa; and
h) ensure the sub-floor is adequately ventilated and is structurally sound; and
i) ensure that the levels of a sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness; and
j) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments are moved. Breakages and damage are the responsibility of the owner of the property. All care taken but no responsibility accepted by the Seller in this regards; and
k) provide adequate dustsheets to protect the Buyers furniture and décor. The Seller cannot accept any responsibility for the cleaning or repair cost attributed to dust or damage caused by the sanding process. Flaking or crumbing walls should be temporarily covered by the Buyer, until the coatings are dry; and
l) supply power to within three (3) metres of the project; and
m) provide suitable and adequate waste disposal facilities unless otherwise agreed with the Seller.
- 20. General
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 Seller 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 Seller of these terms and conditions.
20.4. In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods and/or Services.
20.5. 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 Seller.
20.6. The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.7. The Seller 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 Seller notifies the Customer of such change. Except where the Seller supplies further Goods and/or Services to the Customer and the Customer accepts such Goods and/or Services, the Customer shall be under no obligation to accept such changes.
20.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.