SUBJECT AS MAY HEREINAFTER BE PROVIDED FOR pursuant to the provisions of Section 55 of the Sale of Goods Act,1893, nothing herein contained or in any other document in relation to this transaction is intended to affect or prejudice nor will it affect or prejudice the statutory rights of the Customer (as hereinafter defined) under Section 12, 13, 14 and 15 of the Sale of Goods Act, 1893 and 1980 save (if the Customer is not dealing as a Consumer within the meaning of that term in Section 3 of the Sale of Goods and Supply of Services Act, 1980) to the extent permitted by law.
Arrabawn Co-Operative Society Limited (“the Seller”), (which expression includes its subsidiaries (as defined in Section 155 of the Companies Act 1963)) contracts with its customers (“the Customer”) subject to and upon the following Terms and Conditions of Sale (“the Conditions”) which exclusively govern all sales of the Seller’s goods and services (collectively and individually referred to as “Goods”) notwithstanding any terms or conditions, whether oral or written or purported variations contained in any order or other correspondence submitted by the Customer to the Seller (whether before or after the making of the Contract) save to the extent that such variation is expressly agreed in writing by a duly authorised officer of the Seller (“agreed in writing”).
In these conditions the following terms have the following meanings:
DELIVERY DATE means the date specified by the Seller when the Goods are to be delivered, or the date on which delivery takes place, whichever is the later;
AMOUNT DUE means all sums due by the Customer to the Seller, together with V.A.T., and all other applicable taxes and any accrued Credit Charge;
CREDIT CHARGE means the sum payable by the Customer to the Seller ON THE Amount Due at a rate of 1% per month (or at such different rate as may be determined by the Seller from time to time). The Credit Charge shall be applied to the Amount Due, (irrespective of whether the Amount Due consists of the price of goods sold and / or services supplied and / or Credit Charge on previous unpaid balances) one month from the end of the month of sale of goods or supply of services and each successive month thereafter until the Amount Due is discharged in full.
The Credit Charge will be payable on demand after as well as before Judgment and will be compounded per Credit Charge Period.
PAYMENT DATE means the date specified by the Seller on the Trading Statement upon which date full and final payment for the goods and any accrued Credit Charge will be made by the Customer;
TRADING STATEMENT means the Statement issued by the Seller showing the amount due by the Payment Date;
3.1The price will be as stated by the Seller from time to time and will be exclusive of V.A.T. (unless otherwise stated), or any similar tax or any tax or duty relating to manufacturer, transport, export, import sale or delivery of the Goods, which shall be due on the date of the Seller’s invoice.
3.2The Seller reserves the right at any time and without notice to alter its prices as well as the specifications or composition of the Goods.
3.3Unless otherwise stated, the Price does not include either cost of delivery to the Customer’s address agreed between the Seller or the Customer and does not include insurance of the goods in transit.
3.4All payments must be made in the currency quoted on the Seller’s invoice
4.1Delivery shall take place by such method as the Seller may in its absolute discretion decide, to the location specified by the Customer (the Delivery Destination), on or as close to the Delivery Date as is reasonably practicable in all the circumstances. For the avoidance of doubt the Delivery Date is approximate only and unless otherwise expressly agreed in writing by the Seller, time is not of the essence for delivery. The Seller will not liable for any delay in the delivery of the goods, howsoever caused.
4.2The Goods may be delivered by the Seller in advance of the Delivery Date, upon the Seller giving reasonable notice to the Customer.
4.3If the Goods are not received by the Customer within seven days from the Delivery Date, the Customer will immediately inform the Seller.
4.4The Seller will be entitled to make partial deliveries or deliveries by instalments and the conditions herein contained will apply to each partial delivery.
4.5The Seller reserves the right to sub-contract the fulfilment of any Customer’s orders or any part thereof.
4.6The Customer shall take delivery of the goods tendered notwithstanding that the quantity so delivered is less than the quantity specified in the Customer’s Order and payment will be made in accordance with these Conditions.
4.7 Unless otherwise agreed in writing, delivery of the goods to the Customer will be deemed to occur: (a) when the goods are delivered by or on behalf of the Seller or (b) in all other cases, on the completion of the loading of the goods at the Seller’s premises.
4.8 Upon delivery of the goods to the Customer and notwithstanding of the provisions of Clause 6 all risks(whether insurable or not) relating to the Goods shall pass to the Customer; the Customer will insure and keep insured the goods in an amount at least equal to the price to be paid by the Customer and to hold upon trust for the Seller all proceeds of such insurance and Sections 20, 32(2) and 32(3) of the Sale of Goods Act, 1893 will not apply; and (b) the Customer will indemnify and keep indemnified the Seller against all loss of and any damage to the goods and against any reduction in the re-sale value thereof below the price to be paid therefore by the Customer until the Seller is paid in full for the Goods.
4.9 If, for any reason, the Customer fails to accept delivery of any of the goods when they are ready for delivery or the Seller is unable to deliver the goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, the Seller may store the goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). This provision is without prejudice to any of the Seller’s rights in relation to a failure by the Customer to take delivery of the goods or to pay for them in accordance with the terms of the Contract.
5.1 Unless agreed in writing, payment of the Amount Due will be made in full by the Customer to the Seller on the Payment Date and in this regard time will be of the essence. Such payment will be made without deduction or set off whatsoever. The Customer authorises the Seller in its sole discretion (a) to deduct any sums due by the Seller to the Customer under any other Contract or arrangement of any amounts up to but not exceeding the amount due and to pay any amount due by the Seller to the Customer for and on behalf of the Customer towards payment of all or (as the case may be) part of the amount due and/or (b) to set off the amount due against any sums due by the Seller to the Customer on foot of any other Contract or arrangement.
5.2 All payments by the Customer to the Seller shall be firstly applied in reduction of the Credit Charge due to the Seller, and thereafter all sums paid by the Customer to the Seller shall be applied in reduction of any amount due. The Seller shall be entitled to payment of the Credit Charge notwithstanding that risk and / or title to the goods may not have passed to the Customer.
5.3Nothing in this Clause shall limit the Seller’s rights pursuant to Clause 8 hereof.
6 TRANSFER OF OWNERSHIP AND TITLE
6.1 The title in all goods supplied by the Seller to the Customer will, notwithstanding delivery and passing of risk remain in the Seller until the entire of the Purchase Price in respect of such goods and all other sums due on any account due by the Customer to the Seller, including but not limited to the Credit Charge, have been paid in full.
6.2 Risk in the goods shall pass to the Customer:
(a) when the goods are delivered.
(b) if the goods are kept at the Seller’s premises or otherwise to the Seller’s Order, upon collection of the goods by the Customer or upon the expiration of seven (7) days from the Seller’s written notice to the Customer that the goods are ready for delivery, whichever is the earlier.
6.3 Until such time as the title to the Goods passes to the Customer, the Customer shall keep the goods separate from those of the Customer and third parties and shall keep the goods properly stored, protected and insured against all normal risks to the reasonable satisfaction of the Seller and identified as the Seller’s property and shall not destroy, deface or obscure any identifying mark or packaging on or related to the goods;
6.4 Provided no notice in writing to the contrary has been served , the Customer shall be entitled to use, re-sell or distribute the goods in the ordinary course of its business, including selling or otherwise disposing of same , but the Customer will not be entitled to pledge or create any lien, charge or other encumbrances whatsoever on the goods. The provisions of this Clause will not entitle the Customer either to refuse or to delay payment or to require the Seller to accept the return of the goods on the grounds that the title in the goods remain with the Seller, as aforesaid. The Seller may maintain an action for the price of the goods notwithstanding that the title in the goods may not have vested in the Customer.
6.5 Without prejudice to the Seller’s rights pursuant to Clause 7, the Customer’s power to use, manufacture, mix, sell or otherwise dispose of the goods will terminate:
(a) forthwith on notice from the Seller, if the Customer is in default of any of its obligation under these Conditions of Sale or under any other Contract with the Seller or if the Seller has reasonable doubt as to the ability or the willingness of the Customer to pay any sum to the Seller on the Payment Date; and (b) automatically and upon the occurrence of any of the following:
(i) if the Customer calls a meeting or makes any arrangement or composition with its creditors;
(ii) if the Customer commits act of bankruptcy (within the meaning of Section 7 of the Bankruptcy Act, 1988, as amended);
(iii) if the Customer appears unable to pay his debts (within the meaning of Section 2 of 4 of the Company’s Act, 1963;
(iv) if there is presented a Petition for the winding up of the Customer; or
(v) if the Customer has a Receiver or an Examiner appointed to it or a winding up Order is made against it or if it goes into voluntary liquidation (other than for the purpose of a bona fide reconstruction or amalgamation).
Upon suspension or repudiation or termination of the Customer’s power of sale and use under this Clause, the Customer will place all the goods in its possession or under its control at the Seller’s disposal.
6.6 The Seller shall be entitled at any time to require the Customer to deliver the goods to the Seller and if the Customer fails to do so forthwith, the Seller shall be entitled at any time, on giving prior written notice, to enter any premises occupied by the Customer (or of any third party where the goods are stored) with or without vehicles for the purpose of:
(a) inspecting and / or reviewing the goods and identifying them as the Seller’s property;
(b) re-taking possession of the goods and the customer irrevocably authorises the Seller to enter upon its premises for these purposes.
6.7 If the Customer sells or otherwise disposes of the goods for a cash consideration, the Customer will ensure that at all times it holds a sum equal to the monies owing to the Seller in trust for the Seller and upon request the Customer will provide details of such monies to the Seller.
6.8 If the Customer sells or otherwise disposes of the goods for a non-cash consideration the Customer will ensure that at all times it holds such of the said non-cash consideration as equates to the value of the money due by the Customer to the Seller in trust for the Seller and undertakes to store such non-cash consideration so that it is clearly identifiable and will insure same and provide details of such consideration upon request by the Seller.
6.9 Any goods repossessed by the Seller may be resold upon such terms as the Seller may in its absolute discretion determine and the Customer shall remain liable to the Seller for the difference between the net proceeds of such re-sale and all outstanding sums due to the Seller in respect of the goods and for all costs and expenses incurred by the Seller in repossessing, storing, insuring and reselling the goods.
6.10In addition to any right of lien to which the Seller may by law be entitled, the Seller shall be entitled to retain possession of all goods in its possession or under its control until payment of the amount due.
7 REMEDIES FOR DEFECTS
7.1 If by reason of any defects in the goods, there will be a breach of any implied condition or warranty applicable thereto, the Seller will, at its option, either replace the goods (in which case these Conditions will apply to such replacement goods) or shall issue a credit note to the Customer provided that:-
The Seller is notified in writing within three days of delivery of the goods of any defect by reason of which the customer alleges that the goods delivered are defective which should be apparent on reasonable inspection;
In the case of all defects which cannot be discovered on reasonable inspection, the Seller is notified in writing within seven days of (i) the discovery of any such defects by the Customer or (ii) the date upon which such defects would have been reasonable capable of being discovered by the Customer, whichever is the earlier;
The relevant goods are returned to the Seller at the cost of the Customer; examination of such goods by the Seller discloses to its satisfaction that the defect existed at the time of delivery or that a breach of implied Condition or Warranty (if any) has occurred as aforesaid, and in particular that the Goods have not been affected by misuse, neglect, accident, improper storage, installation, handling or transport (including but without limitation the failure by the Customer to comply with guidelines issued by the Seller or the Seller’s Carrier from time to time relating to storage, installation, handling or transport of the goods) or by any alteration not effected by the Seller; and
The Customer pays to the Seller the costs as stated by the Seller of any examination of the goods as a result of which the Seller does not admit liability.
7.2 The Customer will not reject any goods or cancel or purport to cancel the Contract or any part of it because of an alleged defect unless the Seller will have failed to correct such alleged defect within thirty (30) days of written notice from the Customer specifying the defect.
8 DEFAULT BY CUSTOMER
8.1 If the Customer fails to comply with any of these Conditions (including stipulations as to payment); or if circumstances akin to any of those described in Clause 6 hereof occur then, in any such event, the Seller will have the right (without prejudice to any other remedies available to the Seller) to cancel any uncompleted order and withhold or suspend delivery of further goods and demand payment forthwith of all sums due by the Customer to the Seller.
8.2 The Seller may stop the delivery of goods in transit where the Seller is not satisfied with the Customer’s financial condition / credit worthiness. In such event, the Seller may resell such goods at public or private sale, without notice to the Customer and without affecting the Seller’s rights to hold the Customer liable for any loss or damage caused by breach of Contract by the Customer.
9 LIMITATION AND EXCLUSION OF LIABILITY
9.1 No provision in these Conditions will affect or be construed to affect the Consumer’s statutory rights (if any) under the Consumer Credit Act, 1995 (as amended) and / or under the European Communities (Unfair Terms and Consumer Contracts) Regulations, 1995 and the European Communities (Unfair Terms and Consumer Contracts) (Amendment) Regulations, 2000. The Seller shall not be liable to the Customer in respect of any defect arising from wear and tear wilful damage, negligence, abnormal working conditions, a failure to follow the Seller’s instruction (whether oral or in writing), misuse or alteration or repair of the goods without the Seller’s prior written approval;
9.2 The Seller will not be liable to the Customer by reason of any representation or any implied warranty, condition or other term or any duty at common law or under the express provisions of these Conditions for any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill, economic loss or damage, loss of reputation or any indirect or consequential loss, damage, costs, expenses or other claims for compensation (whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the goods by the Seller or their use or resale by the Customer. In particular the Seller accepts no responsibility for any loss or damage to the Goods whilst in transit through the effects of travelling or humidity or extremes of temperature or any other cause whatsoever.
9.3 The Seller shall not be liable to the Customer or otherwise be deemed to be in breach of the Contract in performing or in any failure to perform any of the Seller’s obligations in relation to the goods if the delay or failure was due to any cause beyond the Seller’s reasonable control, or beyond the control of the Seller’s suppliers
9.4 All warranties, conditions or other terms implied by Statute (including, without limitation in the Sale of Goods Act, 1893 and the Sale of Goods and Supply of Services Act, 1980) or common law are excluded to the fullest extent permitted by Law. Subject thereto, the Seller expressly excludes any and every condition, warranty or guarantee as to the quality of fitness for any purpose of the goods, whether express or implied.
9.5 Nothing in these Conditions will limit or exclude the Seller’s liability for:
Death or personal injury caused by its negligence, or the negligence of its employees, agents or a sub-contractor;
Fraud or fraudulent misrepresentation;
Any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability. Save as aforesaid, the Seller’s total liability to the Customer in respect of all other losses, arising under or in connection with the supply of goods, whether in contract, tort (including negligence), breach of statutory duty, or otherwise will in no circumstances exceed the price of the goods.
10.1 The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to the credit reference, agency and personal data will be processed by or on the Seller’s behalf in connection with the goods. The Customer authorises the Seller to share/exchange information to facilitate the efficient payment of third party deductions by the Seller particularly relating to milk supplied by the Customer to the Seller and also relating to farm inputs purchased by the Customer from the Seller. The Customer consents to the collection and disclosure of personal data relating to the Customer where it is necessary or desirable for the foregoing purposes.
11 FORCE MAJEURE
11.1 The Seller shall not be held responsible for the non- performance of its obligations, in whole or in part, which are not the result of fault or negligence of the Seller, and which occur despite all reasonable attempts to avoid, mitigate or remedy, and shall include acts of God, war, riots, civil insurrections, cyclones, hurricanes, floods, fires, explosions, earthquakes, lightning, storms, chemical contamination, agricultural diseases, epidemics or plagues, acts or campaigns of terrorism or sabotage, blockades, embargoes, accidents or interruptions to transportation, trade restrictions, acts of any Governmental Authority, acts of the Customer or a third party, strikes and other labour difficulties, and other events or circumstances beyond the reasonable control of the Seller
12 GENERAL PROVISIONS
12.1 The Seller reserves the right to correct any errors / omissions which arise on invoices and in Trading Statements.
12.2 The rights granted to the Customer pursuant to these Conditions are personal to the Customer and are not assignable to a third party. A person who is not a party to this Contract will not have any rights under or in connection with it.
12.3 Any wavier of any of the provisions of these Conditions in the case of any order will not operate as a waiver of any of the provisions of these Conditions in respect of any other order.
12.4 No forbearance or indulgence by the Seller shown or granted to the Customer whether in respect of these Conditions or otherwise shall in anyway affect or prejudice the rights of the Seller against the Customer or be regarded as any waiver of these Conditions.
12.5 Each of the provisions of these Conditions shall be regarded as creating separate and severable and enforceable terms and obligations and in the event of any of them being adjudicated to be void or unenforceable, for whatsoever reason, the said provisions will be given effect to in its reduced or modified form as may be decided by any Court of competent jurisdiction and such voidance or unenforceability will not affect the validity of the remaining provisions.
12.6 These Conditions constitute the entire of the agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given on behalf of the Seller which is not set out in these Conditions or written materials provided by the Seller.
12.7 The headings of these Conditions are for convenience only and have no effect upon the interpretation thereof.
12.8 These Conditions are governed by and will be construed in accordance with the laws of the Republic of Ireland and the parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Republic of Ireland.
12.9 In any case in which the Seller supplies a service within the meaning of Part 4 of the Sale of Goods and Supply of Services Act, 1980, all statements, representations, conditions or warranties as to the fitness and / or quality of such service or materials supplied by the Seller in connection with such service, whether expressed or implied by law or otherwise are hereby expressly excluded.