Terms & Condtions
T.O’DONOGHUE LTD – TERMS OF SALE
The customer's attention is drawn in particular to the provisions of clause 6.
1. Basis of contract: 1.1Completing the order form constitutes an offer by you (“the Customer”) to purchase the goods specified therein (“the Goods”) in accordance with these terms of supply (“Terms”). Such an offer (“the Order”) shall only be deemed to be accepted when we, T.O’Donoghue Ltd (“the Supplier”) issue a written acceptance of the Order, at which point the Contract shall come into existence. The Contract constitutes the entire agreement between the parties. 1.2. “T.O’D Jewels” and “T.OD” are trading names of T.O’Donoghue Ltd.
2. Delivery: 2.1Delivery of the Goods shall be completed on the Goods' arrival at the premises specified by the Customer when placing the Order.
2.2Time of delivery is not of the essence.
2.3The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
3. Quality: 3.1The Supplier warrants that on delivery the Goods shall(a) conform in all material respects with their description; (b) where new goods are supplied be free from material defects in design, material and workmanship; and (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
3.2Subject to clause 3.3 , if(a) the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 3.1(b) the Supplier is given a reasonable opportunity of examining such Goods; and(c) 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,then the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
3.3The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 3.1 in any of the following events(a) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage and maintenance of the Goods or (if there are none) good trade practice regarding the same; (b) the Customer alters or repairs such Goods without the written consent of the Supplier; (c) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
3.4Except as provided in this clause 3, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause
3.5The 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.
3.6These Terms shall apply to any repaired or replacement Goods supplied by the Supplier.
3.7All diamonds sold by the Supplier have been purchased from legitimate sources not involved in funding conflict in compliance with United Nation Resolutions.
4 Title and risk: 4.1The risk in the Goods shall pass to the Customer on completion of delivery.
4.2Title to the Goods shall not pass to the Customer until the earlier of(a) the Supplier receiving payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and (b) the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 4.4.
4.3Until title to the Goods has passed to the Customer, the Customer shall(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
4.4Subject to clause 4.5, 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(a) it does so as principal and not as the Supplier’s agent; and(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
4.5If before title to the Goods passes to the Customer the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or suffers any comparable insolvency or bankruptcy procedure or demand, then without limiting any other right or remedy the Supplier may have, (a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and(b) the Supplier may at any time(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and(ii) 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.
5 Price and payment: 5.1The price of the Goods shall be the price set out in the Order, 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.
5.2The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer unless otherwise stated on the order.
5.3The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
5.4The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
5.5The Customer shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice unless special terms are written on the order. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
5.6 If the Customer fails to make any payment due to the Supplier by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2.5% per month above HSBC's base rate as varies from time to time. Such interest shall accrue on a daily basis until actual payment of the overdue amount. The Customer shall pay the interest together with the overdue amount.
5.7The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer (whether in its capacity as a customer or otherwise) against any amount payable by the Supplier to the Customer.
5.8The Supplier shall be entitled to apply any sums paid by the Customer to any debt owed to it by the Customer (whether in its capacity as a customer or otherwise), regardless of the age or size of the debt or the size of any sums paid by the Customer.
6 Limitation of liability:6.1 Nothing in these Terms shall limit or exclude the Supplier's liability for(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);(b) fraud or fraudulent misrepresentation; or (d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
6.2Subject to clause 6.1, (a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and (b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
7 Force majeure: The Supplier shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by any event beyond its reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
8 General: 8.1If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible it shall be deemed deleted.
8.4No failure or delay by a party to exercise any right or remedy provided under these Terms or by law or single or partial exercise of the same shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
8.5The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
8.6A person who is not a party to the Contract shall not have any rights to enforce its terms.
8.7 No variation of these Terms shall be effective unless it is in writing and signed by the parties.
8.8Data Protection. Where the Supplier receives any personal data (as defined by the Data Protection Act 1998) (“the Act”)) from the Customer, it shall ensure that it fully complies with the provisions of the Act and only deals with the data to fulfil its obligations under the Contract. The Supplier shall have such systems in place to ensure a) full compliance with the Act; b) compliance with the Seventh Data Protection Principle which deals with the security of personal data; and c) the reliability of all its employees who may be involved in processing the personal data. The Supplier shall take all reasonable steps to ensure that all its partners, contractors and agents comply with this clause where they are processing any of the Customer’s personal data on behalf of the Supplier.
8.9The Contract shall be governed by and construed in accordance with the laws of England, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of England.