Standard Conditions of Sale
1.1 Every Contract for sale between Mervue Laboratories Ireland (hereinafter referred to as “The COMPANY”) and “THE BUYER” shall be subject to these conditions. No variations of these terms and conditions will be binding on the Company unless same is confirmed in writing by The Company to THE BUYER.
1.2 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
1.3 Each order or acceptance of a quotation for the Companies Product by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy the Product subject to these conditions. No order placed by the buyer shall be deemed to be accepted by the Company until the Company delivers the Product to the Buyer. The Buyer shall ensure that the terms of its order and any applicable specifications are complete and accurate.
1.4 Unless otherwise agreed, any quotation is valid for a period of Thirty (30) days only from its date, provided that the Company has not previously withdrawn it.
1.5 Except for the express warranties set out herewith, the Company grants no other warranties relating to the Goods, and all other conditions, warranties, stipulations on other statements what so ever, whether express or implied, by statute of common law or otherwise howsoever, relating to the Goods are hereby excluded, in particular (but without limitation of the foregoing) the Company grants no warranties(other than as provided in the warranties set out above) regarding the fitness for the purpose, suitability, performance, use, or use under any specific conditions notwithstanding any knowledge the Company has of that, quality or merchantability of the Goods, whether express or implied, by statute at common law or otherwise howsoever.
1.6 All descriptions, specifications and particulars of weights and dimensions submitted by the Company or otherwise contained in the Company’s price-list or other published matter are approximate only and none of these shall form part of any contract or give rise to any independent or collateral liability upon the Company being intended merely to present a general idea of the Goods as described therein.
1.7 No specification on, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into these Conditions of Sale or the agreement to which they relate except in so far as the terms and conditions herein contained.
2.1 The Company will use its best endeavours to deliver all goods at the date and within the time agreed in the Contract, but the Company shall not be liable for any expense, loss or damage whatsoever suffered by THE BUYER as a result of the Company for whatever reason not delivering at the date or within the time so specified.
2.2 Any time specified by the Company for delivery of the product are intended to be an estimate only and time for delivery shall not be made of the essence by notice. If no times are so specified, delivery shall be within a reasonable time.
2.3 The quantity of any consignment of Product as recorded by the Company on dispatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence providing the contrary.
2.4 For the purpose of these conditions, delivery is deemed to be effected when: a) If THE BUYER is to collect the goods, as soon as they are ready for dispatch and THE BUYER has been notified b) in all other cases as soon as the goods are dispatched from the Company premises
3. FORCE MAJEURE
3.1 Should the availability of any of the goods at any of the Company`s premises or the delivery thereof, whether by the Company or an Independent carrier, be prevented hindered or delayed directly or indirectly by fire, the elements, war, civil commotion, strikes, or lock-outs, industrial dispute, shortage of raw materials or regulations of any Government delay on the part of any independent sub-contractor, carrier, or supplier, or any other cause whatsoever beyond the reasonable control of the Company, then the time for delivery of the goods shall be extended for a reasonable period having regard to the effect of the delaying cause on the availability or delivery of the goods. If the availability or delivery of the goods is still prevented, hindered or delayed at the end of that period, the Company may terminate any or all agreements in relation to deliveries not made, without being liable for any loss or damage incurred by BUYER.
3.2 The Company reserves the right to cancel the relevant contract between the Company and the Buyer (or any order or acceptance of quotation related thereto), reduce the volume of the Product to be supplied to the Buyer thereunder or defer the date of delivery of any Product to be so supplied if: (a) the Company is prevented from or delayed in the carrying on of its business in any respect due to circumstances beyond the reasonable control of the Company; or (b) without prejudice to the foregoing provisions of this Clause 3.2, there is any increase in the direct or indirect costs of the Company related to the acquisition of raw materials (“Raw Material Acquisition Costs”) comprising part or all of any Product to be so supplied (including (without limitation) the price paid or payable by the Company for such raw materials (the “Raw Material Price”)). Without prejudice to the provisions of Clause 3.1 and the foregoing provisions of this Clause 3.2, if Raw Material Acquisition Costs increase between the date of any order of or acceptance of quotation in respect of any such Product by the Buyer and the date on which any such Product is delivered to the Buyer by the Company, the Company reserves the right to increase the price to be paid by the Buyer to the Company in respect thereof.
4.1 The Buyer must inspect the goods as soon as it receives them and determine whether the product is in proper condition. Any complaints shall only be taken up if these have been brought to Mervue Laboratories Ireland attention in writing immediately, but in any event within eight days after the goods are delivered, failing which the Buyer shall have unconditionally accepted the items delivered. Minor deviations or differences (or deviations or differences which are customary in the industry) with respect to quality, quantity, size, or finishing may not constitute grounds for complaints. The taking up of a complaint shall not affect the payment obligation and the obligation to purchase any remaining deliveries under the agreement between Mervue Laboratories Ireland and the Buyer. Any right to complain shall be extinguished by the mere fact that the Buyer has mingled the delivery or portion thereof with or incorporate this into any other item of whatever nature.
4.2 The Company shall not be liable for loss or profit, or for any expenditure incurred or any consequential or special loss or damage sustained by THE BUYER by reason of any breach by the Company
5. LIMITATION OF LIABILITY
5.1 Save as otherwise expressly provided, the following provisions set out the entire financial liability of the company(including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of; (a) Any breach of these conditions; (b) Any use made or resale by the Buyer of any Product, or of any product incorporating any of the Product and (c) Any representation, statement, or tortuous act or omission including negligence arising under or in connection with the Contract.
5.2 Nothing in these conditions excludes or limits the liability of the Company for any matter for which it would be illegal for the Company to exclude or attempt to exclude its liability.
5.3 The Company’s liability in respect of the Product is limited to the invoiced cost of the product supplied and the company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation and without prejudice to the foregoing shall not be liable to the buyer for any injury, sickness or death of animals fed with material including the product or the product. The cost of replacement of the Product shall be in all circumstances limited to the cost of replacing the Product as supplied. Because of such limitation, the Buyer is advised to check that the Product meets the specifications before commencing such operations.
5.4 Subject to 5.2 and 5.3, and without prejudice to conditions 4.2:
(a) The Company’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 the Contract, or the use or resale of the Product by the Buyer shall be limited to the Contract Price.
(b) The Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract, or the use or resale of the Product.
a) Save as provided by Section 22 of the Sale of GOODS AND Supply of Services Act, 1980, all guarantees, warranties, or conditions whether expressed or implied by statute, common law or otherwise are excluded and hereby negatived.
b) The Company shall not be responsible for any loss or damage however caused arising directly or indirectly from storage, application or use of any of the goods supplied by the Company. Any advice or recommendation given by the Company, its servants or agents as to the mode of storing, apply or using any of the goods supplied by the Company is given without liability on the part of the Company, its servants or agents.
a) Payment shall be made at the time specified and unless otherwise agreed shall be deemed to be due and payable strictly 30 days from date of invoice. The amount of the price to be paid is that specified or agreed or calculated in accordance with the formula specified or agreed. The amount shall not be subject to any discount or deduction except as agreed in writing by the Company. The Company shall be entitled to charge interest on all overdue accounts as hereinafter provided.
b) Where the Company’s quotations are based on prices quoted in currency other than the euro they will be subject to revision up or down if any different rate of exchange is ruling on the date of delivery.
c) If the Buyer and the Company agree in writing (a “Forward Purchase Agreement”) that the Company shall purchase a certain volume of raw materials (the “Agreed Raw Materials Volume”) at a certain Raw Material Price (the “Agreed Raw Materials Price”) with a view to such raw materials comprising part or all of any Products to be supplied by the Company to the Buyer, the Buyer shall be bound to purchase Products from the Company incorporating not less than the Agreed Raw Materials Volume of such raw materials at a price reflecting the Agreed Raw Materials Price.
d) Value-added Tax shall be payable by THE BUYER on the quoted price at the appropriate rate.
8. PART DELIVERY
Each part delivery or instalment of the goods shall be deemed to be sold under a separate contract and no default by the Company in respect of any part delivery or instalment shall entitle THE BUYER To treat the Contract as repudiated in regard to any balance or instalment remaining deliverable.
The Company shall be entitled, without prejudice, to its other rights and remedies either, to terminate wholly or partly every supply contract between itself and THE BUYER or to suspend any further deliveries under any or every contract if-
a) Any debt is overdue and unpaid by THE BUYER to the Company
b) The Buyer has failed to provide any letter of credit, bill of exchange or any other security required by the Contract
c) The Buyer has rejected, returned or failed to take delivery of any goods tendered by the Company otherwise than in accordance with THE BUYER’S contractual rights
d) THE BUYER being a body corporate, becomes insolvent or, pass a resolution or, suffer an order of the Courts to be made, for their winding up or have had a receiver appointed (or to carry out or undergo any analogous act or proceedings under foreign law) or being an individual or partnership become insolvent or suspend payment in whole or in part or purpose or enter into any composition or arrangement with his or their creditors or have had a receiving order in bankruptcy made against him or them, or carry out or undergo any analogous act or proceeding under foreign law. The Company shall be entitled to exercise its aforesaid right to termination of suspension at any time during which the event of default giving rise thereto has not ceased or been remedied.
10. THE BUYER shall not be entitled to withhold payment of any amount payable under the Contract to the Company because of any disputed claim of THE BUYER nor shall THE BUYER be entitled to set off against any amount payable under the contract to the Company or any monies which are presently payable by the Company or for which the Company disputes liability.
11. RETENTION OF TITLE
a) The property or the goods shall not pass to THE BUYER and THE BUYER shall keep the goods as a bailee and Trustee for the Company (returning the same to the Company upon request) until the price shall have been paid and until any other sums whatsoever which are due from THE BUYER To the Company whether under this Contract or howsoever otherwise shall have been paid in full without any reductions or determent on account of any dispute or cross-claim whatsoever.
b) Until all monies due to the Company as defined in paragraph (a) hereof shall have been paid in full by THE BUYER to the Company, the Company shall be entitled (in addition to and without prejudice to any other remedies available to it) to enter upon any lands or property and to remove and take away all goods and products thereof supplied by the Company without being liable for any loss and damage incurred in doing so. THE BUYER hereby irrevocably authorises the Company in such circumstances to make such entry on such lands or property as may be necessary to effect to taking away and removal of such goods and products.
c) Notwithstanding sub-clause (a) hereof THE BUYER shall be entitled to sell the goods or the products to third parties in the normal course of his business and to deliver them to such third parties but the proceeds of any such sales shall whenever any sum whatsoever is due from THE BUYER to the Company whether under this contract or howsoever otherwise be held in trust for the Company and on such sale and/or delivery THE BUYER , in any case where the price of the goods sold has not been paid in full to the Company, is hereby deemed to assign to the Company absolutely (and the Company hereby accepts such assignment) the benefit of any claim which THE BUYER has against any such third party arising from such sale and/or delivery.
d) In the event of THE BUYER becoming insolvent and/or a Receiver or Liquidator being appointed, such Receiver or Liquid at or shall pay in to a separate bank account any sums received from third parties in respect of sales to them of goods or products by THE BUYER, up to the amount of any indebtedness of THE BUYER to the Company for the sole benefit of the Company
a) Notwithstanding that the property and the goods may not have passed to THE BUYER shall carry all risk of loss or damage to the goods from the time when the time when the goods are delivered to THE BUYER
b) From the time the risk of loss or damage to the goods commences to be carried by THE BUYER until the Company is paid in full for the goods. THE BUYER SHALL:
1.Identify and keep identified the Company against all loss of and damage to the goods and against any reduction in the resale value thereof below the price to be paid thereof by THE BUYER.
2. Insure and keep insured the goods the goods in an amount at least equal to the price to be paid therefore by THE BUYER, and
3. To hold upon trust for the Company absolutely all proceeds of such insurance.
All and every collection fee of whatever kind including Solicitors and Client costs incurred by the Company in collecting overdue accounts and interest thereon shall become by THE BUYER in their entirety and shall be payable to the Company by THE BUYER as a lawful debt due under this contract.
All sums not paid on being due in accordance with Clause 7 above shall bear interest at the rate of 2% per month or part of amount hand compounded until actual payment. The said rate of interest shall also be payable in respect of sums due under Clause 13 and 14 thereof.
15. TECHNICAL INFORMATION
15.1 Information regarding the technical application which is provided orally, in writing or through samples/tests shall be furnished to the best of Mervue Laboratories Ireland’s Knowledge, but shall only represent indicative information that is free of obligation, including with respect to any third parties. They shall not discharge the Buyer from the obligation to check the products delivered for their suitability for the intended processes and objectives. The Buyer itself shall be responsible for the application, use and processing of the products, without Mervue Laboratories Ireland accepting any liability for this.
15.2 If, however, any liability on Mervue Laboratories Ireland’s part turns out to exist, it shall be limited for all incidents to the purchase price of the goods delivered by Mervue Laboratories Ireland and used by the Buyer.
16.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. 16.4 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland and the parties submit to the exclusive jurisdiction of the Irish Courts.
17.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post or sent by fax to the registered office of the recipient or other such address as shall have been notified to one party by the other.
17.2 Communications shall be deemed to have been received (i) if sent by pre-paid post, ten days (excluding Saturdays, Sundays and Bank Holidays in Ireland) after posting (exclusive of the day of posting) or(ii) if delivered by hand, on the day of delivery or (iii) if sent by fax on a working day prior to 4:00pm, at the time of transmission and otherwise on the next working day.
18. The waiver by the Company of any breach of any term of this Agreement shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.
19.1 Any and all disputes or differences arising between the Company and the Buyer under this contract shall be referred to Arbitration which shall be conducted in accordance with the provisions set forth in the Arbitration Act, 2010 ordinary Actor Statutory Rule or Order extending, amending, modifying or replacing the same and for the time being enforce.
19.2 The arbitration shall be conducted by an Arbitrator to be agreed between the parties and in default of agreement either party shall be entitled to apply to the President of the Law Society of Ireland to appoint an arbitrator.
19.3 The costs of the appointment of an Arbitrator shall initially be borne equally between the parties it being acknowledged that the unsuccessful party to the arbitration shall reimburse the successful party any sums so paid in connection with the arbitrator’s appointment.
20. The Contract price for the Goods shall be adjusted by the amount of any increase or decrease after the date of the Contract and before delivery of the goods to the Buyer, which have come about as a result of the increase of the cost to the Company of materials, ingredients, labour, fuel, transport or other expenses. The Contract price shall further be adjusted by the amount of any increase or decrease in the cost of the Contractor in performing this agreement due to any alteration after the date of the contract in the rate of VAT. The Company shall give to the Buyer, written notice of change in the contract price as soon as reasonable possible.
21. ACKNOWLEDGEMENT OF BUYER OF TERMS AND CONDITIONS.
The buyer acknowledges that the Company has advised him/it of these terms and conditions of sale prior to acceptance of the Order and that these terms and conditions are part of the contract for the sale and purchase of the product.