THE E.I. UNLIMITED COMPANY TERMS AND CONDITIONS OF SALE
The following words shall mean:- “Buyer” The person, firm or company named as such on the invoice attached on the reverse side hereof and who shall enter into this Contract with the Seller for the purchase of Goods.
“Seller” The E.I. Unlimited Company. “Goods” The Goods specified on the invoice contained on the reverse side hereof. “Price” The applicable Price of the Goods specified on the invoice contained on the reverse side hereof.
2. Application of Conditions
2.1 These conditions shall apply to all Goods sold by the Seller to the Buyer on the Buyer’s account and shall be incorporated in all dealings and contracts between the Buyer and the Seller for the sale of Goods.
2.2 Any terms and conditions of the Buyer shall not apply to the contract and are expressly excluded.
2.3 The Sellers acceptance of any order and the Seller’s delivery of any Goods shall incorporate these conditions in the Contract.
2.4 The Seller reserves the right at any time to modify the Goods or substitute them with any Goods of equivalent quality without notice to the Buyer.
3.1 The Price, unless otherwise stated, shall be exclusive of delivery and transport charges. The Price shall be the Price in force as
of the date of dispatch unless otherwise agreed in writing.
3.2 All Prices and the Price quoted are exclusive of V.A.T. and other applicable taxes, which shall be charged at the rate applicable at the date of the Seller’s invoice.
4.1 Payment shall be made within 30 days of the date of the invoice overleaf.
4.2 If the Buyer fails to pay in accordance with the Contract, interest shall be charged on the outstanding amount from the date due for payment until the date of the receipt of payment at the rate of 3% per annum over the AA rate charged by the Bank of Ireland accruing on a daily basis and calculated on the basis of a 360 day year.
4.3 In the event that the Buyer fails to pay in accordance with the Contract, the Seller shall be entitled in its absolute discretion to suspend delivery of any further Goods unless all sums due and interest thereon has been received or to cancel the Buyer’s order so far as any Goods remain to be delivered thereunder.
4.4 The Buyer shall not be entitled to any credit, relief, set-off or allowance against the Price or payment obligations of the Buyer to the Seller unless the Seller shall have first furnished to the Buyer a written credit note. Otherwise, the Buyer shall be obliged to pay the Price without any deduction for any reason whatsoever.
5. Risk and Reservation of Title
5.1 The risk in the Goods shall pass to the Buyer on receipt of the Goods by the Buyer.
5.2 The title to the Goods shall remain with the Seller unless and until all monies due by the Buyer to the Seller in respect of any Goods supplied by the Seller to the Buyer have been paid in full.
5.3 Cheques or letters of credit or other negotiable instruments are only accepted on the condition that they do not constitute payment unless and until value for same has been fully credited to the Seller’s account or cashed.
5.4 Until such time as the title to the Goods passes to the Buyer, the Buyer shall be constituted as a bailee for reward and shall:-
(i) store the Goods securely and safely in such manner which makes the Goods readily identifiable as the Goods of the Seller and;
(ii) be liable to the Seller for all damage howsoever caused to the Goods;
(iii) insure the Goods to their full invoice value against loss or damage from whatever cause and if requested by the Seller to have the Seller’s interest noted on the appropriate insurance policy and our request to furnish adequate evidence of same to the Seller.
5.5 Until such time as title to the Goods shall pass to the Buyer, the Seller shall be absolutely entitled to repossess recover, sell or otherwise deal with or dispose of the Goods and for this purpose the Seller, its agents or authorised representatives may enter upon any premises where the Goods are stored or reasonably thought to be stored for that purpose.
5.6 The Buyer’s right to possession of the Goods shall immediately cease if the Buyer commits an act of bankruptcy, becomes insolvent, does any thing or fails to do anything which would entitle a receiver to take possession of any assets or which would enable any person to present a petition for winding up of the Buyer or any person to levy execution against any assets of the Buyer.
5.7 Subject to the provisions of this clause, the Buyer is licensed by the Seller to agree to resell or use the Goods subject to the express condition that on such an agreement the Buyer shall act as an undisclosed agent of the Seller whether the Buyer sells on his own account or not, and the Seller shall be entitled to trace the proceeds of sale into the Buyer’s bank accounts or trace against any asset,
or monies worth taken in full or part exchange for the Goods.
5.8 At the request of the Seller and in the event of non payment or late payment, the Buyer shall assign to the Seller all rights relating to payment which the Buyer may have against any third party.
5.9 Unless or until the Goods are fully paid for the Goods shall be kept separately, identifiable, secure and available for return to the Seller if the Buyer defaults in payment for the Goods.
6.1 The Goods will be delivered and shall be deemed to have been delivered to the Buyer when the Goods are received by the Buyer.
6.2 The Buyer shall be entitled to inspect the Goods on delivery and shall be deemed to have fully inspected same. No claims relating to Goods lost or damaged in transit or claimed to be defective will be accepted by the Seller unless such claims have been notified in writing to the Seller within 14 days from the date of delivery.
6.3 The Buyer shall be obliged to accept any partial or incomplete delivery of the Goods.
6.4 If the delivery of the Goods is delayed or postponed through the neglect or default of the Buyer, the Seller shall be entitled to charge the Buyer with the entire costs of storing the Goods, insuring them against loss or damage and for all costs relating to the delivery of the Goods.
7. Return of Goods / Rejection
7.1 Where the Goods have been correctly supplied to the Buyer and are in accordance with the description of the Goods on the invoice the Buyer shall not be entitled to reject the Goods and the Seller will not accept any return of the Goods by the Buyer unless the Seller first gives his prior written agreement to the Buyer.
7.2 The Buyer shall not be entitled to cancel any order or delivery of Goods after such order or agreement to deliver the Goods has been accepted by the Seller without the prior written consent of the Seller.
8. Limitation of Liability
The Buyer’s attention is particularly drawn to the provisions of this Clause 8 and the Buyer acknowledges that the limits contained in this Clause are reasonable having regard to the subject matter, provisions and value of the Contract. The following terms and conditions shall be treated as separate and severable and enforceable accordingly.
8.1 The warranties obligations liabilities of the Seller and the rights, claims, and remedies of the Buyer specifically set forth in this Contract are exclusive and exhaustive. No other representations warranties or obligations are given or may be implied by law or otherwise with respect to the Goods including any of merchantability, suitability, or fitness for any particular purpose and any which may arise from course of performance, course of dealing, or usage or trade and without prejudice to the generality of the foregoing all warranties and all conditions implied by the Sale of Goods and Supply of Services Act, 1980 are hereby excluded.
8.2 The Buyer acknowledges that the Goods are being purchased by the Buyer for its business or trade and the Buyer hereby represents to the Seller that the Buyer is not dealing with the Seller as “a Consumer” within the meaning of that term in the Sale of Goods and Supply of Services Act, 1980 or the European Community (Unfair Terms and Consumer Contracts) Regulations 1995 (SI number 27/1995) as amended.
8.3 Notwithstanding anything else contained in this Contract, the Seller shall not be liable to the Buyer for;
8.3.1 Any indirect or incidental special or consequential damage of any nature whatsoever (including but not limited to loss of profits or contracts, loss of use, revenue profit or business opportunity or other indirect or consequential loss) whether arising from negligence, breach of contract and / or breach of warranty, indemnity or contribution or otherwise howsoever.
8.3.2 Any loss or damage arising out of any failure by the Buyer to follow the operational instruction for the Goods.
8.3.3 Any non compliance with the warranties contained in this Contract resulting from the use with or incorporation into any other piece of equipment of the Goods provided or recommended by any third party.
8.3.4 The inter-operability of the Goods or their suitability or fitness for combination with, connection with or control by any other goods or products except to the extent that the technical description or specification of the Goods by the Seller shall expressly and specifically warrant and guarantee the suitability for fitness of the Goods for use in combination with or as part of a system or method specified and approved by the Seller.
8.3.5 Unless the Seller shall have modified the Goods the Seller shall not be deemed to be the manufacturer of the Goods and the Seller shall not be liable for any death or personal injury due to any of the Goods being on sale within the meaning of the Liability for Defective Products Act, 1991.
8.3.6 The limit of the Seller’s aggregate liability whether in contract, tort strict liability in tort or by Statute or other wise to the Buyer for any and all claims (except in cases of death or personal injury) in respect of the Goods shall not exceed a maximum sum based on a multiple of ten times the Price of the Goods which is or are established to be defective.
8.3.7 Unless otherwise expressly agreed, the Buyer shall be responsible for ascertaining the suitability and fitness for purpose of the particular Goods for the particular application for which the Goods are intended to be used by the Buyer.
8.4 The Buyer shall indemnify the Seller in respect of all loss, damage or injury caused by or to or relating in any way whatsoever to the Goods or the use of the Goods, from receipt of the Goods by Buyer and shall indemnify the Seller against all actions, proceedings, claims, demands, charges or expenses arising out of or in connection with the Goods.
9. Force Majeure
The Seller shall not be liable to the Buyer in respect of anything which prior to this provision may constitute a breach of this Contract arising by reason of Force Majeure namely circumstances beyond the control of the Seller which shall include (but shall not be limited to ) acts of God, perils of the sea or air, fire flood, draught, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government or parliamentary authority, inability to secure labour, materials or supplies, the breakdown of equipment and labour disputes of whatever nature and for whatever cause arising rendering it impossible or reasonably impracticable for the Seller to supply or deliver the Goods. In such circumstances, the Seller shall be at liberty to determine or suspend the Contract without incurring liability for any loss or damage whatsoever resulting to the Buyer.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the Contract or to such other address as the recipient may designate by notice given in accordance with the provisions of this clause. Any such notice may be delivered personally, by post, or by facsimile transmission will be deemed to have been served, if by hand when delivered, if by post, forty-eight hours after posting and if by facsimile on receipt of an error free transmission report.
11. Entire Terms
The Buyer warrants that it has not been induced to enter into this Contract by representations whether oral or written except as specifically so mentioned. In particular, no licence, authority or permission is granted to reverse engineer, dismantle, analyse, modify or adapt the Goods in any way and all intellectual property rights, including Letters Patent, Copyright and Industrial Design rights or any other intellectual property rights of the Seller
capable of subsisting in the Goods are hereby reserved exclusively to the Seller.
The Headings to the Clauses of the Contract are for ease of reference only and will not affect the interpretation or construction of this Contract.
13. Choice of Law
The Contract shall be governed by and construed in accordance with the laws of Ireland
In the event of any conflict between these Terms and the terms of any Buyer or any other person, these Terms shall prevail and these Terms shall be operative and binding from the time when the Buyer shall have first notice of the Terms whether having read them or not and these Terms shall supersede and replace all previous versions from the date of their first receipt by the Buyer or anyone on behalf of the Buyer.