Terms and conditions
A) These Terms and Conditions which supersede all earlier Terms and Conditions, shall apply to all sales and no variation or purported variation (including in particular any terms and conditions on the Buyer’s contact or order form), whether before or after the making of the contract, shall have effect unless expressly agreed to in writing by Noyeks Limited, (hereafter referred to as “The Company”).
B) There shall be no contract between the Company and the Buyer until the Buyer’s order is accepted by the Company
C) The contractual rights which the Buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Sale of Goods Act, 1893 (as amended) are in no way prejudiced by anything contained in these Terms and Conditions save (if the Buyer is not dealing as consumer or in the case of an International Sale of Goods) to the extent permitted by law.
D) Words and expressions defined in the Sale of Goods Acts, 1893 and 1980 shall, when used in these Terms and Conditions, save where the context otherwise requires, bear the same meanings as therein.
E) All goods supplied hereunder shall be to the customary trade standards and subject to the usual allowances for mill rolling, sheering, cutting, planing, shrinkage, drying and other recognised tolerances.
2. TRANSFER OF OWNERSHIP
A) The property in the goods shall remain in the Company until the Company has received payment in full for all sums due and owing on any account by the Buyer.
B) If the Buyer shall sell or otherwise dispose of the goods before payment in full as aforesaid has been made to the Company, the buyer shall in such case act on his own account and not as agent for the Company and shall hold all monies received by him from such sale or disposal in trust for the Company and shall on request, furnish the Company with the names and addresses of the persons to whom such disposals have been made together with all necessary particulars to enable the Company to recover any outstanding sums due from such persons.
C) So long as the property in the goods shall remain in the Company, the Buyer shall hold the goods as bailee for the Company and store the goods so as to clearly show them to be the property of the Company, and the Company shall have the right, without prejudice to the obligations of the Buyer to purchase the goods, to retake possession of the goods (and for that purpose to go upon any premises occupied by the Buyer).
D) Nothing in this clause shall confer any right upon the Buyer to return the goods. The Company may maintain an action for the price notwithstanding that property in the goods shall not have vested in the Buyer.
A) Any times quoted for delivery are estimates only and the Company shall not be liable for failure to deliver within the time quoted.
B) If the goods are not received by the Buyer within seven days from the date of the relevant invoice, the carrier and the Company must at once be informed.
C) The company shall be entitled to make partial deliveries or deliveries by instalments and the terms and condition herein contained shall apply to each partial delivery.
D) Deviations in quantity of the goods (representing not more that 10 per cent by value) from that stated in the contract shall not give the Buyer any right to reject the goods or to claim damages and the buyer shall be obliged to accept and pay at the contract rate for the quantity of the goods delivered.
E) The goods properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport, shall be delivered by the Company at, or despatched for delivery to, the place or places and in the manner specified in the order or subsequently agreed. Delivery to any lands or premises shall be deemed to be effected by delivery to the nearest off loading point or hard surfaced road.
i) Whether the goods are sold f.o.b or c.i.f the responsibility of the Company shall cease immediately the goods are placed on board ship and the Company shall be under no obligation to give the Customer any notice what-ever.
ii) Where the goods are to be delivered by public carrier the liability of the Company shall cease immediately the goods are delivered to the said carrier its servants or agents for delivery to the Customer.
iii) The signature of any employee of the Customer acknowledging receipt of the goods shall be conclusive evidence of receipt of the goods specified on the relevant delivery docket.
4. RISK OF LOSS OR DAMAGE
A) Notwithstanding that the property in the goods may not have passed to the Buyer, the Buyer shall carry all risk of loss of or damage to the goods from the time when the goods are delivered to a carrier for transmission to the Buyer or the prior delivery to a carrier for transmission to the Buyer, or the prior delivery of the goods to the stipulated place of delivery, either of which events shall constitute delivery to the Buyer, and Section 32 (2) and (3) of the Sale of Goods Act, 1893 shall not apply.
B) From when the risk of loss or and damage to the goods commences to be carried by the Buyer until the Company is paid in full for the goods, the Buyer shall;
i) Indemnify and keep indemnified the Company against all loss of and damage to the goods and against any reduction in the re-sale value thereof below the price to be paid there for by the Buyer.
ii) Insure and keep insured the goods in an amount at least equal to the price to be paid there for by the buyer and
iii) Hold upon trust for the Company absolutely all proceeds of such insurance.
Any price quoted by the Company or comprised in the contract is provisional only, and is subject to market fluctuations and/or changes in basic national wage rates, freight charges, rates of exchange, cost of materials (including raw materials) or other relevant costs. Whilst every effort will be made to maintain prices quoted the Company reserves the right to execute orders at prices ruling at the time of delivery.
6. TERMS OF PAYMENT
A) Payment shall be made in accordance with agreed terms.
B) The Buyer shall pay to the Company interest on overdue payments calculated on the day to day balance at a rate of interest equal to that from time to time payable by the Company on overdraft borrowings. Such interest should be payable on demand and may be charged and added to the balance of overdue payments and thereby compounded, from time to time as the Company may determine. A statement from the Company as to the rate of interest applicable under this paragraph shall, in the absence of manifest error, be conclusive.
C) Nothing in this clause shall be taken as limiting the Company’s rights under clause 8. D) A Deposit is a payment that is made to the Company by the Buyer which indicates an intention to buy goods. When the Buyer pays a deposit for goods, a contract is created between the Buyer and the Company. If the Buyer changes their mind and no longer wishes to purchase the goods, the Buyer will be seen as not fulfilling their part of the contract and the Buyer will not be entitled to their deposit back.
7. REMEDIES FOR ANY DEFECTS ETC.
A) If by reason of any defect in the goods there shall be a breach of any implied condition or warranty applicable thereto, the Company shall at its option either repair or replace the goods or issue credit to the Buyer, provided that:
i) The Company is notified in writing within 7 Days of the discovery of any such defects by the Buyer and in any event not later than 21 days after purchase:ii) The relevant goods are returned to the Company at the cost of the Buyer;
iii) Examination of such goods by the Company shall disclose to its satisfaction (that the defect or failure to conform to specifications existed at the time of delivery or) that a breach of an implied condition or warranty shall have occurred as aforesaid, and in particular that the goods shall not have been affected by misuse, neglect accident, improper storage, installation or handling or by repair or alteration not effected by the Company and:
iv) The Buyer shall pay to the Company the cost (as stated by the Company) of any examination of the goods as a result of which the Company does not admit liability.
The Company has its registered office at:
Unit B1, Ballymount Cross Industrial Estate,
B) All implied conditions and warranties other that those arising under Section 12 of the Sale of Goods act, 1893 (as amended) are hereby excluded in relation to any parts, components and accessories supplied by, but not manufactured by, the Company but the Company will so far as possible pass to the Buyer the benefit of any guarantee, condition or warranty given to the Company by the manufacturer.
C) The Company’s liability for any claim, whether in contract, tort (including negligence) or otherwise, for any loss or damage arising out of or in connection with or resulting from the manufacture, sale, delivery, resale, replacement or use of any of the goods shall in no case exceed the price paid by the Buyer to the Seller for the goods which give rise to the claim, plus expenses of customs, taxes, freight and insurance. In no event shall the Company be liable for any loss of profits or special or consequential damages suffered by the Buyer, including interest charges. Nothing contained in this paragraph shall by implication create any liability or obligation on the part of the Company or effect or diminish any disclaimer or liability else where contained herein.
D) Except as expressly stated above all other warranties, conditions and representations, express or implied, statutory or otherwise, in relation to the quality or fitness for any particular purpose of the goods are hereby excluded and the Company shall not be liable in contract, tort or otherwise for any loss, damage, expense or injury of any kind whatsoever, consequential or otherwise arising out of or in connection with the goods sold or any defect in them or from any other cause, whether or not any such matter amounts to a fundamental breach of a fundamental term of the contract.
E) The Company’s liability under this provision shall be limited to a period of one year from that date of receipt of the goods by the Buyer.
F) The Buyer shall not reject any goods or cancel or purport to cancel the contract or any part of it because of an alleged default unless and until the Company shall have failed to correct such alleged default within thirty days of written notice specifying the default.
8. DEFAULT BY BUYER
A) If the Buyer;
i) Fails to comply with any term of the contract (including stipulations as to payment):
ii) Commits an act of bankruptcy, makes an arrangement or composition with creditors or suffers any distress or execution: or
iii) Resolves or is ordered to be wound up or has a receiver appointed:
then, in such event, the Company shall have the right (without prejudice to any other remedies) to cancel any uncompleted order and withhold or suspend delivery of further goods, and to demand payment forthwith of all sums due by the Buyer to the Company.
B) In the event the Company exercises any rights it may have to stop goods in transit because of the Buyer’s financial condition, the Company may as its option resell such goods at public or private sale without notice to the Buyer and without affecting the Company’s rights to hold the Buyer liable for any loss or damage caused by breach of contract by the Buyer.
The Buyer shall indemnify the Company against all damages, penalties, costs and expenses to which the Company may become liable as a result of work done or the supply of goods in accordance with the Buyer’s specifications which involves the infringement of any letters patent, registered design, copyright trademark or trade name or other rights of confidentiality or information or industrial, commercial or intellectual property.
10. FORCE MAJEURE
The Company shall not be under any liability or whatever kind for non-performance in whole or in part of its obligations under that contract due to causes beyond the control of the Company or beyond the control of the Company’s suppliers including, but not limited to war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience acts of the Buyer or a third party, failure or delay in transportation , acts of any Government or any agency or sub-division thereof, Government regulations, Judicial actions, labour disputes, strikes, embargoes, illness, accident, fire, explosion, flood, tempest or other acts of God, delay in delivery to the Company or the Company’s suppliers or shortage of labour, fuel, raw materials or machinery or technical failure. In any such event, the Company may , without liability, cancel or vary the terms of contract including but not limited to extending the time for performing the contract for a period at least equal to the time lost by reason of such causes.
The buyer shall not assign or transfer or purport to assign or transfer to any other person the contract or the benefit thereof or the benefit of any condition, warranty or guarantee or other term of condition (express or implied) forming part thereof or relating to the goods.
The headings of these Terms and Conditions are for convenience only and shall have no effect on the interpretation thereof.
13. GOVERNING LAW
This contract shall be governed and construed in all respects in accordance with the laws of the Republic of Ireland.