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Terms and Conditions

General Terms & Conditions of Sale

 

Definitions

 

1.1            “Buyer” means the person who buys or agrees to buy the goods from the Seller and includes its/his/her/their servants or agents unless the context admits or requires otherwise;

 

 1.2          “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;

 

1.3           “Delivery Date” means the date specified by the Seller when the goods are to be delivered;

 

1.4           “Goods” means the goods which the Buyer agrees to buy from the Seller;

 

1.5           “Price” means the price for the Goods excluding VAT; and

 

1.6           “Seller” means the person issuing the invoice overleaf and includes its/his/her/their servants or agents unless the context admits or requires otherwise.  

 

Conditions applicable

 

2.1            These conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document or in correspondence. These Conditions constitute the entire understanding between the Buyer and the Seller with respect to the subject matter covered by the contract of purchase and supersede all previous agreements and understandings between the parties. The parties confirm that they have not entered into the contract of purchase on the basis of any representation that is not expressly incorporated into these Conditions. 

 

2.2            Dispatch or delivery of the Goods by the Seller to the Buyer shall be deemed conclusive evidence of the Seller’s acceptance of these Conditions.

 

2.3            Any variation of these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.

 

Price and Payment

 

3.1            The Price shall be the price set out overleaf.  The Price is exclusive of VAT which shall be due at the rate ruling on the date of the Seller’s invoice.

 

3.2            The Seller shall not be bound to deliver the Goods until the Buyer has paid the Price and VAT. In the event that the Seller delivers the Goods to the Buyer and the Seller does not require payment to be made concurrently with delivery, payment of the Price and VAT shall be due on the date specified for payment on the Seller’s invoice to the Buyer, or within 30 days of the date of the said invoice if no such payment date is specified therein. Time for payment shall be of the essence.

 

3.3            Interest on overdue invoices may accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2% above Allied Irish Bank plc’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgment.

 

3.4            If the Buyer fails to make any payment on the due date then without prejudice to any of the Seller’s other rights the Seller may:

 

                 3.4.1    suspend or cancel deliveries of any articles due to the Buyer; and/or

 

3.4.2    appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract with the Buyer) as the Seller may in its sole discretion think fit.

 

The Goods

 

4.1            The Goods shall be supplied in accordance with the description contained in the Seller’s specification.

 

4.2            The Seller may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.

 

4.3            Any contractual description of the Goods by the Seller relates to the identity of the Goods but only if it relates to a central characteristic of the Goods or to a substantial ingredient in their identity.

 

4.4            The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity ordered provided that:

 

                 4.4.1    such discrepancy in quantity shall not exceed 5%; and

 

                 4.4.2    the Price shall be adjusted pro rata to the discrepancy.

 

Exclusion of liability

 

5.1            The terms implied by sections 14 and 15 of the Sale of Goods Act, 1893, as inserted by the Sale of Goods and Supply of Services Act, 1980, and all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods are excluded to the fullest extent permitted by law. Without prejudice to the generality of the foregoing:

 

5.1.1    It is the sole responsibility of the Buyer to order the appropriate Goods and the Seller does not warrant the fitness or suitability of the Goods for use in any engine, plant, machinery, vehicle or equipment. Without prejudice to the generality of the foregoing:

 

5.1.1.1 marked gas oil, also known as home heating oil, green diesel, tractor diesel or agricultural diesel and 35 second oil, may not be suitable for and may cause damage to certain engines, plant, machinery, vehicles or equipment, particularly some modern tractor engines where sulphur free gas oil is recommended by the manufacturer;

 

5.1.1.2 ultra low sulphur diesel and sulphur free gas oil require improved fuel storage and housekeeping arrangements (such as updating the tank and fitting extra filters). In ultra low sulphur diesel and sulphur free gas oil the sulphur component is replaced with a biofuel inclusion and this can thicken if left in a storage tank for long periods. It is recommended that you turn over the contents of a tank containing such oil every 6 – 12 months to stop the biofuel content from thickening and forming a bacterial outbreak which can result in the blockage of fuel filters, increased corrosion and also contaminate the fuel to an extent which results in damage to engines. This oil will also thicken and form a sludge or slime when it comes into contact with water and so it is important that the Buyer keeps the tank free of water to avoid engine damage. To minimise water damage, the Buyer should try to keep the tank as full as possible to minimise condensation, fit a water filter on the tank outlet and install special water absorption filters in the tank.

 

5.1.2    Winter grade gas/diesel oil can freeze below minus 12°C and as such is suitable for use in normal winter conditions in Ireland provided it is not mixed with any oil not meeting the same specifications. The Buyer is accordingly warned and advised to take steps to prevent the oil from freezing, including following any steps as recommended by the manufacturer of the equipment wherein the oil is kept.

 

5.1.3    It is the sole responsibility of the Buyer to specify whether Summer or Winter grade gas/diesel oil is required. In default of the Buyer so specifying, the Seller may supply whatever grade it chooses and the Seller shall have no responsibility for any loss arising from the grade supplied.

 

5.1.4    The Goods have an odour consistent with their nature. It is the sole responsibility of the Buyer to take measures to limit the odour and/or limit its capacity to travel.

 

5.2            The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract.

 

 

Delivery of the Goods

 

6.1            Delivery of the Goods shall be made to the Buyer’s address or to the address nominated by the Buyer on the Delivery Date.  The Goods may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer.  The Buyer shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery.

 

6.2            The Goods will be delivered by the Seller putting the Goods into a container nominated by the Buyer. In the event that the Seller is required to enter onto private property to deliver as aforesaid, the Buyer shall indemnify, and keep indemnified, the Seller against all claims, costs and expenses which the Seller may incur and which arise, directly or indirectly, from the Seller having to deliver as aforesaid, provided that the Buyer shall not so indemnify in respect of all claims, costs and expenses which the Seller may incur and which arise, directly or indirectly, from the Seller’s own negligence provided that this negligence was not as a result of the Seller acting in accordance with the Buyer’s instructions. The Buyer shall take all reasonable care and safety precautions to ensure that the Goods can be delivered onto private property as aforesaid without causing injury to the Seller and in particular shall provide  safe means of access for the Seller’s vehicle and a safe place for the Seller to put the Goods into the container so that the Goods do not ignite. The Seller shall not be liable to the Buyer for any damage caused by spillage of any of the Goods in the course of delivery owing to the negligence of the Buyer.

 

6.3            The Seller may deliver the Goods by separate instalments. The Seller may raise a separate invoice and require payment for each instalment.

 

6.4            The failure or refusal of the Buyer to take delivery or to pay for any one or more of the said instalments of the Goods on the due dates shall entitle the Seller (at the sole option of the Seller):

 

6.4.1    without notice to suspend further deliveries of the Goods pending payment by the Buyer; and/or

 

                 6.4.2    to treat this contract as repudiated by the Buyer.

 

6.5            The Seller shall not be liable for any loss or damage whatever due to the failure by the Seller to deliver the Goods (or any of them) promptly or at all.

 

6.6            Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly, the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 7 days of the Delivery Date.

 

6.7            A certificate in writing signed by the person who carried out the delivery of the Goods on behalf of the Seller or the Seller’s delivery docket signed by the Buyer, stating the time of delivery, the place of delivery and/or the quantity of Goods delivered, shall be conclusive evidence of the contents thereof save in respect of any manifest error appearing therein.

 

Acceptance of the Goods

 

7.1                        The Buyer shall be deemed to have accepted the Goods 24 hours after delivery to the Buyer.              

 

After acceptance the Buyer shall not be entitled to reject the Goods which are not in accordance with the contract.

 

If the Buyer properly rejects any of the Goods which are not in accordance with the contract the Buyer shall nonetheless pay the full Price for such Goods unless the Buyer gives notice of rejection to the Seller within 24 hours after delivery to the Buyer and at the Buyer’s cost returns such Goods to the Seller before the date when payment of the Price is due.

 

Title and risk

 

8.1            The Goods shall be at the Buyer’s Risk as from delivery.

 

8.2            In spite of delivery having been made, property in the Goods shall not pass from the Seller until:

 

                 8.2.1    the Buyer shall have paid the Price and VAT in full; and

 

                 8.2.2    no other sums whatever shall be due from the Buyer to the Seller.

 

8.3            Until property in the Goods passes to the Buyer in accordance with clause 8.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller.  The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.

 

8.4            Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller.  Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.

 

8.5            The Seller shall be entitled to recover the Price and VAT notwithstanding that property in any of the Goods has not passed from the Seller.

 

8.6            Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods.  On the making of such request the rights of the Buyer under clause 8.4 shall cease.

 

8.7            The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller.  Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.

 

8.8            The Buyer shall insure and keep insured the Goods to the full Price against “all risks” to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance.  Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owning by the Buyer to the Seller shall forthwith become due and payable.

 

Remedies of Buyer

 

9.1            Where the Buyer rejects any Goods then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Goods or the failure by the Seller to supply Goods which conform to the contact of sale.

 

9.2            Where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatever to the Buyer in respect of those Goods.

 

9.3            The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods.

 

9.4            In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.

 

 Law and Jurisdiction

 

10. The validity, construction and performance of this agreement shall be governed by Irish law and shall be subject to the exclusive jurisdiction of the Irish courts to which the parties submit.    

 

Indemnity

 

11 The Buyer shall indemnify, and keep indemnified, the Seller against all claims, costs and expenses which the Seller may incur and which arise, directly or indirectly from the Buyer’s breach of any of its obligations hereunder.

 

Assignment

 

12 The Buyer shall not assign, transfer, charge or otherwise deal with its contracts with the Seller or any obligation under same without the prior written consent of the Seller.

 

Force majeure

 

13 Neither party shall have any liability under or be deemed to be in breach of their obligations hereunder for any delays or failures in performance of these Conditions which result from circumstances beyond the reasonable control of that Party.  The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.  If such circumstances continue for a continuous period or more than one month, either party may terminate by written notice to the other party.

 

Waiver

 

14 No failure or delay by the Seller in exercising any right, power or privilege hereunder shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise or any other right, power or privilege.  The rights and remedies provided hereunder are cumulative and not exclusive or any rights or remedies provided by law.

 

Agency, partnership etc.

 

15 This agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this agreement. Neither party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.

 

Further assurance

 

16 Each party to this agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.

 

Severance

 

17 If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the  remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.