Terms & Conditions

1.         Definitions
1.1     "Company" shall mean Active Difference Limited its successors and assigns or any person acting on behalf of and with the authority of Active Difference Limited.
1.2      “Client” 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 Client on a principal debtor basis.
1.4      “Goods” shall mean Goods supplied by the Company to the Client (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 Company to the Client.
1.5      “Services” shall mean all services supplied by the Company to the Client 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 Company and the Client subject to clause 3 of this contract.
2.         Acceptance
2.1      Any instructions received by the Company from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
2.2      Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3      Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of the Company.
2.4      The Client undertakes to give the Company at least fourteen (14) days notice of any change in the Client’s name, address and/or any other change in the Client’s details.
3.         Price And Payment
3.1      At the Company’s sole discretion the Price shall be either;
(a)       as indicated on invoices provided by the Company to the Client in respect of Goods supplied; or
(b)       the Company’s quoted Price which shall be binding upon the Company provided that the Client shall accept the Company’s quotation in writing within thirty (30) days.
3.2      At the Company’s sole discretion all prices are:ex-works; or ex-quay; or FOB; or CIF; or DDU; or as stated on any quotations invoices or any other forms to which these terms and conditions apply. Abbreviated delivery terms are as defined by International Commercial Terms (Incoterms).
3.3      All prices are inclusive of the Company’s standard transport packaging.
3.4      The Company reserves the right to change the Price in the event of a variation to the Company’s quotation.
3.5      The Company reserves the right to vary the Price by Client or contract or both.
3.6      At the Company’s sole discretion a deposit may be required.
3.7      Time for payment for the Goods 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.
3.8      At the Company’s sole discretion;
(a)       payment shall be due before delivery of the Goods, or
(b)       payment shall be due on delivery of the Goods, or
(c)        payment for approved Client’s shall be due thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
3.9      Payment will be made by electronic transfer, or by direct debit or by cheque, or by any other method as agreed to between the Client and the Company.
3.10    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.         Orders
4.1      The Company will only accept purchase ordering in writing by email, fax or letter. Verbal or telephone orders will not be accepted by the Company as valid orders under any circumstances.
4.2      The Client may only consider their order as accepted by the Company on receipt of written confirmation by means of letter, fax or email.
4.3      Supplementary agreements, variations or amendments to the original order will not be binding to the Company without the Company’s written confirmation.
4.4      Unless in writing any and all offers by the Company must be regarded by the Client as non-committed.
5.         Delivery Of Goods
5.1      At the Company’s sole discretion delivery of the Goods shall take place when;
(a)       the Client takes possession of the Goods at the Company’s address or
(b)       the Client takes possession of the Goods at the Client’s address (in the event that the Goods are delivered by the Company or the Company’s nominated carrier); or
(c)        the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
5.2      At the Company’s sole discretion the costs of delivery are;
(a)       included in the Price, or
(b)       in addition to the Price, or
(c)        for the Client’s account.
5.3      The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for waiting time and/or redelivery.
5.4      Unless otherwise agreed, in writing, Goods will be delivered in the Company’s advertised standard packaging. All Goods will be suitably packed for shipment. At the Company’s sole discretion an additional charge may be applied for packing and/or packaging including special documentation to comply with the Client’s requirement.
5.5      The Company’s standard delivery schedule is eight (8) to twelve (12) weeks from order confirmation however not before the appropriation of all necessary documentation including, but not limited to, artwork etc. from the Client together with the receipt of any agreed deposit where relevant.
5.6      The Company will make every reasonable effort to deliver the Goods in line with the delivery schedule however delivery dates and terms are not guaranteed by the Company. The Company will accept no liability whatsoever for loss or damage caused due to late delivery. 
5.7      Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.8      The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5.9      The Company shall make every reasonable effort to ensure that all Goods delivered are in good order and intact. The Client accepts that they cannot reject a full consignment of Goods due to breakages or damaged Goods within the consignment. The Company shall accept defects and returns subject to the provisions of clauses 9 and 10 herein.
5.10    The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
5.11    The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all.
5.12    If the Client is unable to take delivery of the Goods and the Company agrees to store the Goods or arranges storage of the Goods on the Client’s behalf then at the Company’s discretion a charge may be made for storage costs, as determined by the Company. These charges will be detailed as such on an invoice and become payable immediately.
6.         Risk
6.1      If the Company retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2      If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
7.         Title
7.1      It is the intention of the Company and agreed by the Client that ownership of the Goods shall not pass until:
(a)       the Client has paid all amounts owing for the particular Goods, and
(b)       the Client has met all other obligations due by the Client to the Company in respect of all contracts between the Company and the Client.
7.2      Receipt by the Company 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 Company’s ownership or rights in respect of the Goods shall continue.
7.3      It is further agreed that:
(a)       where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Client are met; and
(b)       until such time as ownership of the Goods shall pass from the Company to the Client the Company may give notice in writing to the Client to return the Goods or any of them to the Company.  Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c)        the Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d)       if the Client fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e)       the Client is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Company; and
(f)        the Client shall not deal with the money of the Company in any way which may be adverse to the Company; and
(g)       the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and
(h)       the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i)         until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.
8.         Client’s Disclaimer
8.1      The Client 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 Client by the Company and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
9.         Defects
9.1      The Client shall inspect the Goods on delivery and shall within fourteen (14) days notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Client shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way.  If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Client is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods.
10.      Returns
10.1    Returns will only be accepted provided that:
(a)       the Client has complied with the provisions of clause 9.1; and
(b)       the Company has agreed in writing to accept the return of the Goods; and
(c)        the Goods are returned at the Client’s cost within twenty-one (21) days of the delivery date; and
(d)       the Company 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.
10.2    The Company may (in its discretion) accept the return of Goods for credit or refund but this may incur a handling fee of 10% of the value of the returned Goods plus any freight.
11.      Warranty
11.1    For Goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods.  The Company 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.
12.      Sale of Goods Act 1893 and Sale of Goods and Supply of Services Act 1980
12.1    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 Client is contracting within the terms of a trade/business (which cases are specifically excluded).
12.2    Notwithstanding clause 12.1 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.
12.3    In particular where the Client buys Goods as a consumer the provisions of Clauses 9, 10 and 11 above shall be subject to any laws or legislation governing the rights of consumers.
13.      Intellectual Property
13.1    Where the Company has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings shall remain vested in the Company, and shall only be used by the Client at the Company’s discretion.
13.2    The Client warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Client’s order.
14.      Default & Consequences Of Default
14.1    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.
14.2    If the Client defaults in payment of any invoice when due, the Client shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
14.3    Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions.  The Company will not be liable to the Client for any loss or damage the Client suffers because the Company exercised its rights under this clause.
14.4    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.
14.5    Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:
(a)       any money payable to the Company becomes overdue, or in the Company’s opinion the Client will be unable to meet its payments as they fall due; or
(b)        the Client 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 Client or any asset of the Client.
15.      Security And Charge
15.1    Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a)       where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions.  The Client and/or the Guarantor acknowledge and agree that the Company (or the Company’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 Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
(c)        The Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1.
16.      Cancellation
16.1    The Company may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice the Company shall repay to the Client any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
16.2    The Client may cancel the delivery of standard Goods with a published price prior to shipment, in this event the Client shall be liable for a termination charge of not less than ten percent (10%) of the value of the Goods.
16.3    Cancellation of Goods after shipment shall be subject to written acceptance by the Company and the Client shall be liable for a termination charge of not less than twenty-five percent (25%) of the value of the Goods together with all costs incurred by the Company up to the time of cancellation including but not limited to, packaging, transportation and shipping costs.
16.4    Orders for non-standard Goods without a published price may only be cancelled with the express written agreement of the Company. Such cancellation is subject to the following provisions:
(a)       for Goods which are finished Goods the Client shall be liable, at applicable contract price, for the full cost of the Goods; and
(b)       for Goods, which are part-finished, the Client shall be liable for any and all costs incurred by the Company, direct and indirect.
16.5    Clients will have no rights whatsoever over any Goods which are part of a cancelled order.
16.6    In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.
17.      Data Protection Act 1988 & Data Protection Act 2003
17.1    The Client and the Guarantor/s (if separate to the Client) authorises the Company to:
(a)       collect, retain and use any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and
(b)       to disclose information about the Client, whether collected by the Company from the Client directly or obtained by the Company 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 Client on publicly accessible credit reporting databases.
17.2    Where the Client is an individual the authorities under (clause 17.1) are authorities or consents for the purposes of the Data Protection Act 1988 & Data Protection Act 2003.
17.3    The Client shall have the right to request the Company for a copy of the information about the Client retained by the Company and the right to request the Company to correct any incorrect information about the Client held by the Company.
18.      Unpaid Company’s Rights
18.1    Where the Client has left any item with the Company for repair, modification, exchange or for the Company to perform any other Service in relation to the item and the Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have:
(a)       a lien on the item;
(b)       the right to retain the item for the Price while the Company is in possession of the item;
(c)        a right to sell the item,
18.2    The lien of the Company shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
19.      General
19.1    If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2    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 the Republic of Ireland.
19.3    The Company shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these terms and conditions.
19.4    In the event of any breach of this contract by the Company the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Goods.
19.5    The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Company.
19.6    The Company may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.7    The Company 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 Company notifies the Client of such change. Except where the Company supplies further Goods to the Client and the Client accepts such Goods, the Client shall be under no obligation to accept such changes.
19.8    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.