AVONMORE ELECTRICAL CO LTD.
CONDITIONS FOR THE SALE OF GOODS & SUPPLY OF SERVICES
- GENERAL: These conditions shall form part of the Contract of Sale and/or Services entered into by Avonmore Electrical Co Ltd (Seller).
- All orders placed for goods and services are subject to acceptance by the Seller in writing.
- Exclusion of terms. The following conditions apply in all cases. If the terms and conditions stated in the Buyer’s order are inconsistent herewith or if they contain a provision having an effect similar to these conditions or purporting by other means to exclude these conditions in the Seller’s Acceptance of such an order shall constitute a counter-offer and the Buyer shall be deemed to have accepted these conditions unless it notifies the Seller to the contrary in writing within 14 days of the date of the Seller’s Acceptance of the Buyer’s order.
- Variation and Waiver. No variation, cancellation or waiver of these Conditions shall be valid unless made in writing and signed by the Seller’s duly authorised representative.
- REPRESENTATIONS BEFORE CONTRACT: If a Buyer wishes to rely upon any representations made by the Seller or on the Seller’s behalf but not expressly embodied in any tender estimate, contract or sub-contract to which these terms apply the Buyer must give the Seller written notice of such reliance before placing an order or signing a contract or sub-contract with the Seller and shall not otherwise be entitled to rely on such representations.
- CANCELLATION OF AMENDMENT: When an order has been received and accepted by the Seller cancellation will only be accepted at the Seller’s discretion. The Seller reserves the right to charge for special materials purchased and all or any work carried out up to the date of acceptance of cancellation. The Seller shall have no liability for any failure or delay in performing its contractual obligations and also reserve the right to cancel or amend a Buyer’s order if it is impractical or impossible for us to fulfil the order by reason of any act of God, war, civil disturbance, strike or labour difficulties, lockout, default by any supplier to seller, flood, fire, cessation of work, combination of workmen of employees, legislation or restriction of any governmental or other authority, failure of any utility service or transport network, force majeure or any other circumstances beyond our control and in such circumstances the obligations of each part hereunder shall be wholly or partially suspended during the continuance and to the extent of such prevention, interruption or hindrance.
- DETAILS: Any drawings or details of quantities supplied by the Seller with accompanying tenders or contained in catalogues must be regarded as approximate representations only, are subject to verification by the Buyer, and shall not form part of the Contract Of Sale and/or Services. Products are being continually improved and may incorporate changes current at the time. All patents, registered designs, copyright, trade marks and all other intellectual property rights in any drawings, specifications, materials, documents or information supplied by the Seller shall remain vested in the Seller. The supply of goods and/or services by Seller shall not imply any right to use any of Seller’s patents.
- CONFIDENTIALITY: The Buyer shall keep confidential all technical or commercial know-how and specifications which are of a confidential nature and have been disclosed by the Seller, its employees, agents or sub-contractors and any other confidential information concerning the Seller’s business or its products which the Buyer may obtain.
- FIRM PRICES: Quoted prices are firm for sales orders within one month from the date of quotation. Therefore quoted prices are subject to adjustment to reflect variations in costs unless otherwise stated on the quotation. All quoted prices whether firm for one month or for a longer period as may be given on the quotation specifically exclude any increase in the Seller’s prices that may be occasioned by the increase or imposition of any duty or tax payable in respect of the Seller’s products or services. Quoted service and repair prices are budget prices, which may be subject to adjustment to reflect variations in circumstances beyond the Seller’s control.
- LATENT DEFECT: While the Seller takes all reasonable precaution to ensure that a proper standard of workmanship and materials is used in manufacture, and that its goods are of satisfactory quality and fit for the purpose they are sold and that the goods comply with their description and specifications, it shall not be responsible for any latent defects in goods supplied however caused which could not reasonably be avoided by proper supervision and could not reasonably have been discovered prior to delivery.
- BUYER’S INSPECTION: The Seller shall be responsible for any defects in or unsuitability of goods supplied which could reasonably have been discovered by the Buyer upon inspection or testing of any prototype or sample furnished to the Buyer before ordering.
- BUYER’S OBLIGATIONS: Buyer shall co-operate with the Seller in all matters relating to the sale of goods and/or the supply of services by the Seller and provide, for the Seller, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Buyer’s premises, data and other facilities as reasonably requested by the Seller. Buyer shall inform the Seller of all health and safely rules and regulations and any other reasonable security requirements that apply at Buyer’s premises. Buyer shall obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Seller’s services and/or any installation of Seller’s goods in all cases before the date on which the services are to be provided. Buyer shall hold all materials, equipment, tools, drawings, specifications and data supplied by the Seller in safe custody at its own risk and maintain and keep in good condition until returned to the Seller and shall not dispose of or use other than in accordance with the Seller’s written instructions or authorisation.
- LIMITATION OF LIABILITY: This clause sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: any breach of these Conditions and any Contract; any use made by the Buyer of the goods or any part of them; and any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Conditions and any Contract. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Conditions and any Contract. Nothing in these conditions limits or excludes the liability of the Seller for death or personal injury resulting in negligence; or any damage or liability incurred by the Buyer as a result of fraud or fraudulent misrepresentation by the Seller; or where applicable, any liability incurred by the Buyer as a result of any breach by the Seller of the condition as to title or the warranty as to quiet possession implied by Section 2 of the Supply of Goods and Services Act 1982. Subject to the above the Seller shall not be liable for loss of profits, loss of business, loss of use or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. The Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of these Conditions and any Contract shall be limited to the price paid for the relevant goods or services.
- LOSS OR DAMAGE IN TRANSIT: The Seller shall not be under any liability to replace or repair goods lost or damaged in transit unless written notice shall have been given both to the Carrier and the Seller in the case of non-delivery within 10 days of despatch as indicated on our advice note and in the case of damage or shortage within 3 days of receipt. The goods in respect of which any claim for damage or shortage is made shall be preserved intact as delivered for a period of 14 days from the notification of the claim, within which time the Carrier and the Seller shall have the right to attend the Buyer’s works to investigate the complaint. Goods alleged to be defective should be returned to the Seller carriage paid. Where the goods are accepted without being checked the delivery book of the Carrier must be signed “Not Examined”. The Seller will decline to entertain any claims unless the Buyer complies with these provisions and in any event Seller’s liability will be limited to either repair of the damaged goods or replacement of any lost or damaged goods [or issuance of a credit note at the pro rata rate for the relevant contract against any invoice raised for such goods]. Seller will hold the Buyer liable for any loss resulting from failure to observe these provisions.
- DELIVERY BY INSTALMENTS: Seller may deliver the goods by separate instalments and each instalment shall be a separate contract. No cancellation or termination of any one contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other contract or instalment; however Seller may suspend delivery thereof if payment is overdue in respect of any previous instalment. Each separate instalment shall be invoiced and paid for in accordance with these conditions.
- PAYMENT: Unless otherwise agreed in writing payment is to be made without deduction on or before the last day of the calendar month following the date of invoice. The Buyer shall have no right to set off any claims in respect of the goods or any other goods or services required by the Seller against or in reduction of the price. The Seller reserves the right to charge interest on a daily basis on arrears at the rate of 3% above the rate offered to leading banks in the ECU rate. Failure to make due payments in respect of deliveries, instalments or work carried out under this or any other contract with the Seller shall entitle the Seller to delay, suspend or cancel any outstanding deliveries of goods or cease the supply of services and enter Buyer’s premises to remove goods which are Seller’s property without the Seller thereby incurring liability for any claim for damage or loss and without prejudice to the Seller’s right to treat the contract as repudiated and claim damages. The Seller may exercise the rights set out above in this clause if the Buyer commits a material breach and fails to remedy such breach within 14 days of notification by Seller or becomes bankrupt or makes an assignment agreement or composition with its creditors or goes into liquidation (otherwise than for reconstruction or amalgamation purposes) or if a Receiver is appointed or if Buyer ceases to trade or threatens to cease to trade. These rights may also be executed by the Seller if it has reasonable grounds to believe that any of such above events is likely to occur. Any time or indulgence granted by the Seller to the Buyer shall be without prejudice to the enforcement of the Seller’s strict rights hereunder. All prices and discount rates are subject to alteration without notice and the rate applicable to a particular order will be our price and discount rates at the date of dispatch irrespective of the price and discount rate stated in our acknowledgement. Minimum order charge payable.
- VALUE ADDED TAX (VAT): The Seller shall be entitled to charge VAT at the rate prescribed at the date of invoicing or any other tax or duty based on or related to the supply of goods or services or turnover whether or not included in any quotation or invoice for which the Seller may be liable in respect of any contract.
- RISK AND TITLE: Title to the goods shall remain with the Seller until payment in full is made for the goods and all other sums which are or which become due from Buyer on any account. Seller shall have the right to enter upon Buyer’s premises and recover and dispose of the goods. [Until title to the goods has passed to the Buyer, the Buyer shall hold the goods as the Seller’s bailee, store the goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property and maintain the goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. Risk in the goods shall pass to the Buyer at the moment of delivery. Goods must be held by the Buyer on our behalf as follows:
- It shall be the duty of the buyer to preserve and store goods delivered in an identifiable form and not to mix or make the said goods until payment is received by us in full, unless written consent is otherwise given. Further if such written consent is given, it is agreed that you will hold the proceeds of sale on trust for us in s separate identifiable bank account until the payment is made in full.
- It is further hereby agreed that in the event of the Buyer becoming bankrupt or having a Receiving Order or Administration Order made or making arrangement with creditors for commencing to be wound up then the Buyer will notify us forthwith and we shall be entitled to give notices and instruction to the Buyer in accordance with clause (a) above. Nothing in this sub-clause shall prejudice our rights with regard to clause (a) above.
- EXPORT: Shipping charges in all export quotations are based upon rates ruling at the date of quotation.
- ASSIGNMENT: buyer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of rights or obligations or benefits under a Contract to which these Conditions relate unless the prior written consent of Seller is granted. Seller may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations or benefits under the contract to which these conditions relate.
- GOVERNING LAW: This contract shall be interpreted and operate in all respects and accordance with the laws of Ireland and shall be subject to the exclusive jurisdiction of the Irish Courts.
- SEVERABILITY: Any provisions of these Conditions which in any way now or subsequently contravenes the law shall be deemed severable and shall not effect any other provision(s) herein.
- EFFECTS OF HEADINGS: The clause headings herein shall not affect the interpretation of these conditions.
- WARRANTY: We shall repair or, at our option, replace without any prejudice, products manufactured and supplied by us hereunder which prove defective within twelve months from the date of despatch PROVIDED ALWAYS, that
- Such products have not been structurally modified or misused or misapplied; and
- They are returned to us carriage paid; and
- All terms agreed by us for payment of such goods have been strictly complied with; and
- Any claim hereunder is made within 30 days of the date of discovery of the defect.
PROVIDED THAT this Warranty shall not extend to any prototype(s) nor any pre-production batch supplied for customer evaluation. Where it appears to us following an inspection of the return of goods that no defect rendering the goods unmerchantable or fit for their purpose exists or has existed since despatch by us we shall be entitled at our absolute discretion to return the goods henceforth to the buyer who shall thereupon bear and be responsible for cost of carriage thereby incurred.
Save as provided above we accept no liability in contract or tort whatsoever in respect of defects in goods sold by us save where such liability cannot be limited or excluded in law.
In the event of breach of foregoing warrantees, Seller agrees to repair or replace defective materials, goods and services, or, as the case may be, to make such changes, adjustments or replacements as may be necessary.
The guarantee does not cover wear and tear items, e.g. bearings, gaskets, etc. The Seller shall not be liable for any losses of production or consequential damages which may arise under the performance of the service or product provided.