General Terms and Conditions of Sales
1. Definitions
In these conditions the following definitions apply :
a) “Business Day” means a day (other than a Saturday, Sunday or Public Holiday in Ireland) when banks in Ireland are open for business;
b) “Company” means DigitalWell;
c) “Conditions” means the terms and conditions set out in this document, and includes the Contract to which this document relates, as amended from time to time in accordance with clause 2;
d) “Contract” means any specific contract between the Company and the Customer for the sale and purchase of Goods and/or the supply of services in accordance with these Conditions (for the avoidance of doubt, where a specific contract is not in place these general terms and conditions of sale apply and are contractually binding);
e) “Customer” means any party to whom the Company may agree to sell Goods and/or supply Services in accordance with the Company’s standard conditions of sale and/or supply;
f) “Goods” means the articles or things any of them, or any part or parts of them, to be provided by the Company in accordance with the Company’s standard conditions of sale;
g) “Order” means the Order Form or Customer Application or Customer Quotation to which these Terms and Conditions are applied. Orders are accepted via written (including physical or electronic communication) or oral means.
2. Conditions
In these conditions, the following rules apply:
a) A Person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality.)
b) A reference to a party includes its personal representatives, successors or permitted assigns.
c) Any phrase introduced by the terms including include, in particular, or similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
d) A reference to writing or written includes faxes and emails and social media posts
e) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
3. General
a) These Conditions apply to the Quotation or Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
b) Where the Company provides a Telecom, Managed Services or Maintenance Agreement under Contract, the terms of the individual Contract (where issued and signed) will supersede these Conditions.
c) These Conditions constitute the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in these Conditions.
d) A party who is not a party to the Quotation or Contract shall not have any rights to enforce its terms.
4. Orders
a) The Order constitutes a commitment by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the order are complete and accurate.
b) The order shall be deemed to be accepted when the Company issues a written acceptance of the order, at which point any specific additional Contract shall come into existence.
c) All orders are accepted and Goods or Services supplied subject to these conditions. The Goods or Services are described in the Company’s catalogue or in the Order or Quotation. All warranties and representations, express or implied and statutory or otherwise, except as to title, are hereby excluded. Except as set out herein, no variation of these Conditions, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Company.
d) Where the Company provides Maintenance, Service or Telecom services, these are all potentially subject to separate agreements and, where issued and signed, the terms of those agreements will override these Conditions listed below.
e) The Company reserves the right (without prejudice to any other remedy) to cancel any incomplete order or to suspend delivery in the event of any of the Customer’s commitments to the Company not being met. If an order is cancelled by the Company in the aforementioned circumstances or is cancelled by the Customer then the Customer shall indemnify the Company against all loss, costs (including costs of all labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and the cancellation thereof, (the Company giving credit for the value of any such materials sold or utilised for other purposes). All orders are subject to the availability of the Goods.
5. Prices
a) Catalogues, price lists and other advertising literature or material as used by the Company are intended only as an indication of price and range of Goods offered and no price descriptions or other particulars contained therein shall be binding on the Company.
b) The price of the Goods shall be the price quoted in the Order.
c) Prices relating to Outbound or Inbound call charges are subject to change (increase or decrease) without notice. Customers may request current call termination rate sheets at any time by contacting their account manager or emailing a request to accounts@digitalwell.com.
d) All quoted or listed prices are exclusive of Value Added Tax (VAT) or any other taxes and are based on the cost of the Company supplying the Goods or Services to the Customer. The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods and Services.
e) Unless otherwise agreed in writing, prices do not include delivery charges to the Customer, and the Company reserves the right to levy a charge for delivery to any other destination advised by the Customer.
f) Prices may not be shared with any third party person or organisation without the permission of an authorised representative of DigitalWell.
The Company may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
g) Unless otherwise stated, any price quoted shall be valid for 14 days from the date of quote issued.
6. Term
a) Except where stated and agreed as part of a specific signed service contract, All recurring services and maintenance is provided on the basis of a default initial 36 month service contract term. Unless notice to terminate is received within 90 days of the end of the initial term or a new contract and term is agreed, all services will auto renew on a repeating 12 month term thereafter. For the avoidance of doubt these services include WLR, SIP Trunks & associated voice termination bundles, Broadband Internet connections, Private WAN connectivity services, Hosted Telephony and Contact Centre services, Co-Location, Infrastructure as a Service and all Maintenance and Support services applicable to any hardware & software solution ordered by the customer.
b) If the contract is terminated for any reason prior to the expiry of the initial or renewed Service Schedule Term (other than for our material breach), you must pay the company any costs associated with such termination (including but not limited to non-refundable amounts paid by us to a third party for any hardware and software and maintenance support services).
c) If during the initial Minimum or renewed Term a Service is cancelled for any reason other than for material breach, we may charge you an amount calculated as the Services Charges that would have been payable for the Services for the remainder of the active term.
7. Manufacturers’ Specification
The Company will not be liable in any respect for any loss or damage caused by or resulting from any variation for whatsoever reason in the Manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. The Company will not be held responsible for any service outage or material loss resulting from the End Of Life or End Of Support status of any manufacturer’s hardware or software as may have been supplied by the company.
8. Carriage & Delivery
a) The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the “Delivery Location”) at any time after the Company notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed on the Goods arrival at the Delivery Location.
b) Any dates and times quoted for delivery are to be treated as estimates only and the time of delivery is not of the essence. Whilst every endeavour will be made to meet these estimates for dispatch the Company shall not be liable in any manner whatsoever for failure to dispatch within the time quoted.
c) If the Company fails to deliver the Goods, its liability shall be limited to the costs incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
9. Passing of Risk and Property
a) Risk in the Goods shall pass to the Customer on delivery at the delivery location.
b) Property in the Goods shall remain in the Company until payment in full for the Goods, and any other goods which the Company has supplied to the Customer in respect of which payment has become due, has been made by the Customer, at which time title to the Goods shall pass at the time of payment of all such sums.
c) Until title to the Goods has passed to the Customer, the Customer shall:
Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s product;
Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
Notify the Company immediately if it becomes subject to any of the events listed in clause 14 (a); and
Give the Company such information relating to the Goods as the Company may require from time to time
If payment in full is not made in accordance with the Company’s standard conditions of sale, the Company may require the Customer to return the Goods forthwith and if the requirement is not immediately complied with the Company shall be entitled at any time and without notice to retake possession of the whole or any part of the Goods (and for that purpose to enter the premises occupied by the Customer and sever the Goods from anything they are attached to without being responsible for any damage thereby caused) without prejudice to any other remedy that may be available to the Company.
10. Defects and Use
a) Save as herein expressly provided and save to the extent that the exclusion or restriction of liability may be prohibited by statute, the Company shall not be liable for any loss of whatsoever nature or to whomsoever or whatsoever caused arising out of the use of the Goods. The Customer shall indemnify the Company against all claims made against the Company by any third party in respect thereof, unless otherwise agreed.
b) Where the Goods are rejected by the Customer for whatsoever reason, the Company will only accept the return of such Goods provided that it receives written notice thereof within three days of receipt of the Goods and provided that the Goods are returned to the Company within the same three days. Any refunds will be made at the Company’s discretion less the amount incurred by the Customer for the delivery/ carriage charges both to the Customer from the Company and to the Company from the Customer. All Goods returned must include all original packing and manuals and must be returned in the same condition that it was dispatched to the Customer. Any damage or loss to either the Goods, packaging or manuals will affect the amount of refund to be made. The company reserves the right to charge the customer a restocking fee equivalent to up to 15% of the sales quoted price for said item.
11. Product Warranties
a) In the case of defects or faulty workmanship in products or any parts thereof supplied but not manufactured by the Company, the Customer shall not be entitled to receive any greater benefit here under than shall be received by the Company under any guarantee or warranty given to the Company by the manufacturers or suppliers thereof. Under warranty, the Company will, at its option, either repair or give a replacement of equivalent quality or issue credit to the Customer for any Goods found to be defective because of faulty maintenance by The Company or poor workmanship provided that
b) The Company is notified in writing within 7 days of The Customer first covering any such defects;
c) The Goods have been used in an appropriate manner and/or as prescribed in the operating instructions (if any);
d) The defective Goods are returned to the Company at the Customer’s expense;
Examination by the Company of such Goods discloses to its satisfaction that such defect exist and have not been caused by misuse, neglect accident, improper storage installation or handling or by repair or alteration not effected by the Company;
e) The Goods not having been modified or repaired otherwise than by the Company or otherwise interfered with and;
f) The Customer shall pay to the Company the cost (as certified by the Company) of any examination of such Goods as a result of which the Company denies liability.
12. Return of Equipment
The Goods will not be accepted by the Company until a Return number is obtained. All Goods must be returned in their original undamaged packaging with the returns number clearly displayed on the outside of the box. The Goods returned must be in good condition and together with all parts and instruction manuals pertaining to the Goods which are being returned.
13. Force Majeure
The Company shall not be responsible, or liable to the Customer, for any failure or delay in performing its obligations under the Contract, in whole or in part, to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
14. Consequential Loss and Damage
Save as herein expressly provided The Company shall not be liable for any loss or damage of whatsoever nature or to whomsoever caused arising out of the use of Goods supplied by it. The customer shall indemnify The Company against all claims made against The Company by any third party in respect thereof.
15. Payment
a) Provided that the Customer has been granted credit facilities by the Company, settlement terms are Net thirty (30) days from the date of the invoice. In the absence of credit facilities having been granted by the Company, payment shall be in advance.
b) The Company reserves the right to suspend deliveries where payment is not received in accordance with paragraph (a) of this clause or in accordance with any alternative terms of payment agreed in writing.
c) Where payment is not made in accordance with the terms of sub-clause (a) above hereof the Customer shall pay interest on any unpaid amounts calculated at 7% above the Euribor one (1) month rate for the time being in force. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with their overdue amount.
d) The 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 Company may at any time, without limiting any other rights or remedies it may have, set-off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
e) On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.
16. Customer Default and Cancellations and Re-scheduling of Deliveries
a) If the circumstances or status of the Customer changes, or the Company reasonably believes that the circumstances or status are about to change,, for whatsoever reason (e.g. inability or unwillingness to pay debts, bankruptcy, examinership or receivership, change of name, the Customer is subject to litigation by The Company or other parties, the Customer begins negotiations with all or any class of its creditors with a view to rescheduling any of its debts etc.) the Company reserves the right without prejudice, to cancel or suspend trading with the Customer including orders in progress and to demand immediate settlement in full of all outstanding invoices.
b) Requests by a customer for cancellation or amendment of any order or for the re-scheduling of deliveries will only be considered by the Company if made in writing and shall be subject to the written acceptance of the Company or if cancelled or rescheduled at the request of the Customer, then the Customer shall indemnify the Company against all losses and costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and the cancellation, amendment or re-scheduling thereof to be calculated at 5% of the value of the order with a minimum of thirty (30) Euro.
c) The Company shall not be liable for the cancellation by it of any order or any unfulfilled part thereof or for effecting partial delivery if performance by the Company is prevented or delayed whether directly or indirectly by any cause whatsoever beyond the reasonable control of the Company whether such cause existed or was foreseeable at the date of acceptance of the Customer’s order by the Company or not and without prejudice to the generality of the foregoing any cause shall be deemed to prevent, hinder or delay the Company if the Company is thereby prevented, hindered or delayed from fulfilling other commitments whether to the Customer or to third parties.
17. Non-standard Goods
Unless otherwise agreed The Goods are supplied in accordance with the Manufacturer’s standard specification. The Company reserves the right to increase its quoted or listed price or to change accordingly in respect of any orders accepted for products of non-standard specification and in no circumstances will it consider cancellation of such orders or the return of The Goods.
18. Severability
If and to the extent that any provision or any part of the provision of these Conditions is or becomes invalid, illegal, void or unenforceable for any reason, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, then such provision or part thereof (as the case maybe) shall be severable from the remaining provisions or parts of the relevant provision (as the case maybe) and shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions all of which remaining provisions shall remain in full force and effect.
19. Waiver
A waiver of any right or remedy under these Conditions or the law, is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. The waiver by The Company of any right or remedy arising from a breach of any term hereunder shall not prevent the subsequent enforcement of that term.
20. Limitation of Liability
a) Nothing in these Conditions shall limit or exclude the Company’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
b) Subject to clause 18 (a) under no circumstances whatsoever shall the Company 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 or expenses, including but not limited to damages caused by loss of data, arising under or in connection with the Contract.
c) Subject to the limitations otherwise set out hereunder the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to the value of the services delivered by the Supplier to the Customer in the 12 month period immediately prior to the event giving rise to the liability.
21. Assignments
a) The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
22. Notices
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 20 (an); if sent by pre-paid first class post or other next working day delivery service, at 9:00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
23. Information Security
We work to ensure adequate Confidentiality, Integrity and Availability of information in the delivery of our products and services.
You as a Supplier are required at a minimum to comply with our Supplier Security Policy, which is available at this terms and conditions. In addition, you shall implement appropriate technical, administrative, and physical measures to ensure a level of information security exists in your organisation that is proportionate to the works you are contracted by us to deliver. You are bound to ensure confidentiality in relation to all commercial, operational, and organisational interactions with both our organisation and with our clients. You may be requested to comply with additional requirements to ensure adequate levels of protection and information security, which will be specified as required. You are required to ensure your employees and any other agents are bound by these requirements.
24. Legal Construction
These Conditions, and any disputes arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall in all respects be governed by, and construed in accordance with the law of the Republic of Ireland.
Each party irrevocably agrees that the courts of the Republic of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or its subject matter or formation (including non-contractual disputes or claims).