TERMS AND CONDITIONS OF SALE
1.1 These conditions constitute the only conditions on which Halpin Agency and Distribution Ltd. (hereafter the “Company”) are willing to supply goods (hereafter “Goods”) to any person who purchases the Goods from the Company (hereafter a “Customer”). Any variations to or waiver of these Conditions or any additional representation or warranty given in relation to the Goods shall have no effect unless expressly agreed in writing and signed by the Company. The Conditions shall prevail over any terms and conditions that the Customer purports to apply under any document issued by the Customer.
1.2 Each order placed by a Customer for the supply of Goods (hereafter an “Order”) shall be deemed to be an offer by the Customer to purchase Goods subject to these Conditions, which is subject to acceptance by the Company. Following such acceptance, no Order may be cancelled without the consent of the Company to be given in its absolute discretion and subject to conditions as it thinks fit. For the purposes of these Conditions a Contract shall mean any agreement between the Company and the Customer for the sale of Goods and, in the case where an agreement is long term or covers more than one delivery, each delivery or call off within such agreement shall be deemed to be a separate Contract.
2. PRICES AND PAYMENT
2.1 Prices quoted by the Company (whether verbally or in writing) may be withdrawn by the Company at any time prior to a Contract being entered into. The price payable for the Goods shall be as agreed between the Customer and the Company in the Contract and, unless otherwise agreed, are exclusive of VAT and costs of carriage.
2.2 Payment is due in cleared funds by the date specified on the Company’s invoice save where alternative payment terms have previously been agreed in writing between the parties. The Company may amend the payment terms applicable to the Customer on notice to the Customer in the event the Company has concerns over the Customer’s creditworthiness or such an amendment is necessary, in the Company’s opinion, as a result of market conditions. Payment will be made in full without deduction or delay by way of any set-off or counterclaim. Time of payment shall be of the essence.
2.3 The company reserves the right to increase the prices of the Goods or reduce its supply commitments in terms of volume agreed between the Customer and the company, whether in relation to a single Contract or a number of Contracts, over a period as necessary to take account of any increase in cost to the company due to (i) any change in law, regulation, tax, duty, levy or other payment imposed upon the Goods after the date of the Contract by the European Union or other national government; or (ii) circumstances of hardship/force majeure or significant increases in prices, or reductions in availability of, raw materials, energy, services or other supplies required by the Company, on giving the Customer one month’s prior notice together with an explanation of the reason for such changes. The Company also reserves the right to terminate, without liability, any Contract the performance of which, as a result of any such change, will have a material adverse effect on the Company which cannot be resolved by an increase in the price.
3.1 Unless otherwise agreed, delivery of Goods shall take place at the Customer’s place of business. Delivery shall occur when the Goods are delivered into the tank of the Customer or its agent or, in relation to packaged Goods, when the Goods are unloaded at the Customer’s premises. The Customer shall supervise the unloading process and shall provide adequate staff, equipment, instructions and assistance to enable the Goods to be offloaded at the Customer’s premises.
3.2 If it is agreed that delivery shall take place at the Company’s place of business, delivery shall occur when the Goods leave the Company’s delivery equipment and pass into the vehicle of the Customer or its agent’s or, in relation to packaged Goods, when the Goods are loaded onto such vehicle. The Customer shall ensure that the delivery vehicle is clean, sound and fit for purpose.
3.3 The Company and the Customer may agree, or the Customer may request, a date or time or period for delivery of the Goods but any such dates/times are intended to be estimates and time shall not be the essence of the Contract or made so by notice. The Company shall use its reasonable endeavours to comply with any date or time agreed for delivery but, subject to the other provisions of these conditions, the Company will not be liable for any loss, damages, charges or expenses caused by any delay in the delivery of the Goods, nor will any delay entitle the Buyer to terminate or rescind the Contract, unless such delay exceeds 1 day. The Company’s liability for any failure or delay in delivery shall be limited to the excess (if any) over the price of the Goods of the price of replacement goods to the Customer, in the cheapest available market.
3.4 The Customer undertakes to collect or take delivery of the Goods at the agreed time/date or evenly during the agreed period and agrees to indemnify the Company against any costs or losses incurred by the Company as a result of any failure to do so (including, without limitation, additional delivery costs and demurrage and storage costs), other than where such failure arises as a result of the default of the company. In such circumstances the Company may sell the Goods and charge the Customer for any shortfall below the Contract price and shall thereafter have no further liability under the Contract.
3.5 In the event that Goods are specified to be sold on the basis of a trade term defined in Incoterms 2000 (as amended from time to time) such trade term shall prevail and, to the extent these Conditions are inconsistent in the context of delivery and risk with the relevant Incoterm, these Conditions shall not apply.
4. RISK AND TITLE
4.1 The Goods are at the risk of the Customer from the time of delivery or, if the Customer fails to take delivery pursuant to Condition 3.4 at the originally agreed delivery time.
4.2 The Company shall remain the sole and absolute owner of the Goods until such time as the price of the Goods and all other monies which are or which become due to the Company from the Customer have been paid to the Company by the Customer in cash or cleared funds.
5.1 The Customer must carefully examine all Goods on arrival of the Goods at the Customer’s premises. In relation to packaged Goods, the Customer shall check that the packaging is intact and in good condition and that the correct quantity has been delivered. Any defects discovered as a result of such inspection must be notified in accordance with Condition 7.1. In the event a defect is discovered the Customer shall not use or mix the Goods following such discovery and the Customer’s sole remedy shall be limited, as the Company may elect, to the replacement of the defective Goods or a refund of the price of the Goods. If the Customer fails to so examine the Goods, the results of tests on the Goods carried out by the Company or the Company’s principle prior to delivery shall be conclusive evidence of the absence of defects reasonably discoverable on such careful examination.
6. QUALITY AND QUANTITY
6.1 The Company warrants that (subject to the other provisions of these Conditions), upon delivery the Goods will (i) comply in all material respects with the specification for the Goods agreed in writing and signed by the Company and the Customer or, in the absence of an agreed specification, the specification for the Goods provided to the Customer by the Company or the Company’s principle (which may be in the form of a Product Data Sheet), subject to tolerances set out in the such specification; and (ii) be of satisfactory quality within the meaning of the Sale of Goods and Supply of Services Act 1980 (as amended) from time to time. In the event that the Goods do not comply with the express terms of the Contract or there is a breach of these warranties then the Company shall, at its option, either replace the defective Goods free of charge to the Customer or refund up to the maximum of the total payments made by the Customer to the Company under the Contract in respect of the defective Goods. All other warranties, terms and conditions, express or implied by statute or otherwise (other than the conditions implied by the Sale of Goods and Supply of Services Act 1980) are hereby excluded to the fullest extent permissible by law.
6.2 Delivery of a shortage or surplus not exceeding 5% of the quantity or weight of the Goods ordered shall, at the Company’s option, be considered to be due execution of the Contract and the Customer shall not be entitled to object to or reject the Goods by reason of such surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.
7. LIMITATION OF LIABILITY
7.1 The Company shall not be liable for a breach of these Conditions or any defects in the Goods unless (i) the Customer gives written notice of a defect to the Company within 2 business days of the time when the Customer discovers or, if earlier, ought to have discovered the defect; (ii) the Company has been given a reasonable opportunity after receiving the notice of examining such Goods; and (iii) the Customer notifies the Company in writing of a claim within 6 weeks of delivery of the Goods.
7.2 The Company shall have no liability for any loss or damage arising as a result of the Customer’s breach of its obligations in these conditions. The Customer shall be deemed to have full knowledge of the nature of the Goods and the Company shall not be liable for a breach of these Conditions, in tort or otherwise if any defect arises from failure to follow the instructions for use furnished to it by the Company, or good industry practice in relation to, without limitation, storage, handling, mixing and use of the Gods or wilful damage, negligence or abnormal working conditions.
7.3 Subject to Condition 7.2, the Company’s aggregate liability for breach of these Conditions or the Contract or the Goods, in tort (including negligence, misrepresentation and breach of statutory duty) or otherwise arising from the Contract shall be limited to four times the Contract price for the relevant delivery.
7.4 The Company shall have no liability whether in contract, tort or otherwise for any (i) loss of profit, loss of goodwill, loss of brand or reputation or loss of future sales; or (ii) claims for consequential or indirect loss to a Customer or any other person in connection with the Goods.
7.5 The Company shall have no liability for failure to perform its obligations under a Contract occasioned by any act beyond the reasonable control of the company including, without limitation, act of God, act of terrorism, war, adverse weather, action by government or other authority strike, accident or breakdown of plant or machinery, power failure, crop failure or fire.
7.6 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
8. CUSTOMER DECLARATION
8.1 If the Goods purchased by the Customer are a CN3505 10 50 type product (esterified and/or etherised starch), then the Customer shall be legally bound by the content of EC Regulation 1722/93 in that such Goods: a) will be used to manufacture products other than those listed in Annex II of EC Regulation 1722/93; b) will be exported to third countries, or c) if sold within the EC, will only be sold to a party who will provide the same declaration. In such case the Customer will keep a copy of the said declaration at the disposal of the competent authorities. The Customer also undertakes to maintain stock records of a type approved by its Member State’s authority. In the case of direct exports to third countries the Customer undertakes to prove to the competent authorities that the Goods left the customs territory of the European Community. The Customer acknowledges that non-compliance with this declaration can lead to a penalty for the Company. In this case, the amount of the penalty will be charged to and paid by the Customer.
9. PROPER LAW AND JURISDICTION
9.1 These conditions and any Contract shall be governed by, and construed in accordance with, the laws of Ireland and each of the parties irrevocably agrees that the courts of Ireland shall have jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with same and, for such purposes, irrevocably submits to the jurisdiction of such courts.