Interpretation
In these Conditions:
“Poggesi UK, us, we, our” means DCU LTD t/a Poggesi UK (registered in England under number 11107462).
“Buyer, them” means the person who accepts a quotation from Poggesi UK for the sale of the Goods or whose order for the Goods is accepted by Poggesi UK.
“Goods” means the goods (including any instalment of the goods or any parts for them) which Poggesi UK is to supply in accordance with these Conditions and any Goods supplied in substitution for or in replacement of or in addition to such goods.
“Services” means the activities relating to the supply, installation, delivery, or maintenance of the Goods.
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Poggesi UK.
“Contract” means the contract for the purchase and sale of the Goods.
“Writing” includes letter, email and comparable means of communication.
“Ownership” means the legal right to hold the Goods in their possession.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
Basis of the Sale
2.1 The estimate / quotation forms the foundation for the purchase between Poggesi UK and buyer. The following Conditions shall govern the Contract between us and the buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the Buyer and Poggesi UK.
2.3 The specification of the Goods or Services will defined within the quotation. All changes or representations concerning the Goods, whether they are made by us, our employees, or the Buyer must be confirmed in writing.
2.4 Any storage, application or use of the Goods which is not confirmed in Writing by us is followed or acted upon entirely at the Buyer’s own risk, and accordingly we shall not be liable for any such recommendation which is not so confirmed.
2.5 Poggesi UK reserves the right to amend errors within any literature, quotation, price list, acceptance of offer, invoice or other document or information without liability.
2.6 Once a deposit has been paid by the Buyer to us for the supply of the Goods or Services, a legally binding Contract is formed.
Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by Poggesi UK unless and until confirmed by our authorised representative.
3.2 The Buyer shall be responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by them, and for giving Poggesi UK any necessary information relating to the Goods within a sufficient time to enable us to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in our quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by us).
3.4 If the Goods are to be manufactured, or any process is to be applied to the Goods by Poggesi UK in accordance with a specification submitted by the Buyer, the Buyer shall indemnify us against all loss damages, costs and expenses incurred by us in connection with of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from our use of the Buyer’s specification.
3.5 Poggesi UK reserves the right to ask the Buyer to pay the full quoted amount before production of any bespoke Goods, including, but not limited to, non-standard fabric colours, bespoke sizes, accessories, printing of branding, and parts. This payment will be considered wholly non-refundable at the discretion of the Seller, unless otherwise agreed in Writing.
3.6 Poggesi UK reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to our specification, which do not materially affect their quality or performance.
3.7 Unless otherwise agreed in Writing, a deposit of 50% is required from the Buyer to confirm the order with us, at which point the binding Contract is formed.
3.8 The buyer has the right to cancel the order, but must do this in Writing at the earliest opportunity. From the date of the delivery, a 14 day cooling off period will be allowed during which cancellations will be accepted by the seller. However, the Buyer shall indemnify Poggesi UK in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by us as a result of any cancellation.
3.9 Without prejudice to the terms mentioned above, should the Buyer cancel an Order without confirming with us first, or refuse to accept delivery of any of the Goods without reason, such action shall constitute a breach of the Contract and, we reserve the right to retain, wholly or in part, the 50% deposit as compensation. Poggesi UK and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such breach of Contract on the part of the Buyer. For the avoidance of doubt, in the event that we should opt to retain the deposit whether wholly or in part, and the Buyer duly accepts these conditions, neither party shall have any further liability to the other in relation to the Goods in respect of which such compensation is retained.
Price of the Goods
4.1 The price of the Goods shall be as quoted by Poggesi UK or, where no price has been quoted (or a quoted price is no longer valid), the price listed in our published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only, or such lesser period as shall be stated by us on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by us without giving notice to the Buyer.
4.2 Before delivery of the Goods Poggesi UK reserves the right to give notice to the Buyer of any increase in the price of the Goods due to increases in our own direct costs as a result of any factor beyond our control, including, but not limited to:
4.2.1 any foreign exchange fluctuation, currency regulation, alteration of duties
4.2.2 significant increase in the costs of labour, materials or other costs of manufacture
4.2.3 any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer
4.2.4 any delay caused by any instructions of the Buyer, or failure of the Buyer to give us adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation, or in our price list, and unless otherwise agreed in Writing between the Buyer and Poggesi UK, all prices are given by us are exclusive of carriage charges.
4.4 The pricelist published on our website is inclusive of any applicable value added tax (VAT) that the Buyer is liable to pay to us. All quotations will show a clear breakdown of sub-total, VAT at current rate, and total amount due.
Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and Poggesi UK, we shall be entitled to invoice the Buyer for the price of the Goods at any time before or after delivery of the Goods.
5.2 All Invoices are payable by BACS transfer on a pro-forma basis, unless credit facilities have been approved, in which case Invoices are payable within 30 days of the stated invoice date unless otherwise agreed in Writing. The Buyer shall pay all invoices without any other deductions notwithstanding that delivery may not have taken place and the Ownership of the Goods has not been passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Poggesi UK, we shall be entitled to:
5.3.1 cancel the contract or suspend any further deliveries to the Buyer
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and us) as we may think fit (notwithstanding any purported appropriation by the Buyer) and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 8 per cent per annum plus the Bank Of England base rate, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
Delivery
6.1 Delivery of the Goods will be made by Poggesi UK, its employees, or an authorised agent, to an address supplied in writing by the buyer.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the Goods at any time.
6.3 Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If Poggesi UK fails to deliver the Goods for any reason, other than any cause beyond our reasonable control or the Buyer’s fault, and we are accordingly liable to the Buyer, our liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of Poggesi UK’s fault) then, without prejudice to any other right or remedy available to us, we may:
6.5.1 store the Goods until actual delivery, and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract
6.5.3 charge a reasonable fee for re-delivery of the Goods to cover costs to the Seller for labour, storage, fuel, and accommodation when necessary.
Risk and Property
7.1 Risk of damage to, or loss of, the Goods shall pass to the Buyer:
7.1.1 if the Goods are collected from the Poggesi UK’s premises, at the time when we notify the Buyer that the Goods are available for collection: or
7.1.2 if the Goods are delivered to the Buyers premises at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when we have offered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk of the Goods, or any other provision of these Conditions, the legal Ownership of the Goods shall not pass to the Buyer until Poggesi UK has received payment in full of the price of the Goods.
7.3 Where delivery has been made, but payment not received – until such time as legal Ownership of the Goods passes to the Buyer, the Buyer shall hold the Goods as Poggesi UK’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties. The Goods will remain properly stored, protected, insured and identified as the property of Poggesi UK. Until that time the Buyer shall not be entitled to resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the legal ownership of the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) Poggesi UK shall be entitled at any time to require the Buyer to deliver up the Goods to us and, if the Buyer fails to do so forthwith, we reserve the right to enter any premises of the Buyer, or any third party, where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Poggesi UK, but if the Buyer does so all moneys owing by the Buyer to us shall (without prejudice to any other right or remedy of the Seller) become due and payable.
7.6 For the avoidance of doubt, nothing contained in this Clause 7 shall entitle the Buyer to return any of the Goods to Poggesi UK save as expressly provided in these terms and conditions or as expressly agreed in writing between Poggesi UK and the Buyer.
Warranties and Liability
8.1 Subject to the conditions set out below, Poggesi UK warrants that the Goods will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade, and will be free from defects in material and workmanship for a period no longer than 24 months from the date of delivery.
8.2 Poggesi UK offers the above warranty subject to the following conditions:
8.2.1 Poggesi UK shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer.
8.2.2 Poggesi UK shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, wind damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alternation or repair of the Goods without the Seller’s approval.
8.2.3 repairs to or replacements of damaged parts caused by external forces shall be chargeable by Poggesi UK at current rates;
8.2.4 Poggesi UK shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.2.5 the above warranty does not extend to Goods not manufactured by Poggesi UK, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Poggesi UK.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to Poggesi UK within 30 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify us accordingly, the Buyer shall not be entitled to reject the Goods and we shall have no liability for such defect or failure.
8.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to us in accordance with these Conditions, we shall be entitled to fair opportunity to repair or replace the Goods, or, when absolutely necessary, refund to the Buyer the price of the Goods (or a proportionate part of the price), but we shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by Poggesi UK’s negligence, we shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of Poggesi UK, our employees, agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.8 Poggesi UK shall not be liable to the Buyer, or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Goods if the delay or failure was due to any cause beyond our reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance, or requisition;
8.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.