1. INTERPRETATION
1.1 In these terms and conditions of sales (‘Conditions’), save where the context requires otherwise:
‘Business Day’ means any day other than a Saturday, Sunday or a day which is a public or bank holiday in Ireland;
‘Buyer’ means the person with whom the Company is contracting;
‘Company’ means Polydome Limited, a company incorporated under the laws of the Republic of Ireland with registered number 396015 and with its principal office at Crinkill House, Birr, County Offaly, R42 VX36;
‘Products’ means the products sold or to be sold by the Company to the Buyer; and ‘Value added Tax’ means value added tax or any other sales tax.
1.2 Headings are ease of reference only and shall not affect construction.
1.3 Words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing whole shall be treated as including a reference to any part thereof.
2. CONDITIONS
2.1 These Conditions shall apply to all quotations given or contracts made or agreed to be made by the Company for the sale of the Products. Any conditions submitted, proposed or stipulated by Buyer in whatever form and at whatever time, whether written or oral, and any conditions which are implied by trade, custom, practice or course of dealing are expressly waived and excluded.
2.2 No change to these Conditions shall be binding unless agreed in writing by a director of the Company.
3. ORDERS
3.1 Quotations by the Company do not constitute binding offers open for acceptance but provide an indication of prices at which acceptance of orders will be considered.
3.2 No order sent by Buyer shall be binding upon the Company until it has been expressly confirmed in writing by the Company at which point the contract between Buyer and the Company shall come into existence.
3.3 The Company shall be under no obligation to:
3.3.1. confirm any order sent by Buyer to the Company; and
3.3.2. prefer Buyer against any other person with whom the Company may contract for
the sale of any products offered for sale by the Company.
4. PRICES
4.1 The price of the products shall unless otherwise stated by the Company in writing be the list price of the Company current at the date of delivery. In the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Company at the date of delivery of such instalment.
4.2 The Company reserves the right by notice given at any time before delivery to vary the price of the Products if, after the date of the contract between the Buyer and the Company there is an increase in the cost of the Products to the Company by reason of any circumstance outside the control of the Company including (without limitation) increases in the cost of materials, labour or transport, exchange rate fluctuations, increases in import levies or other taxes. If the price of the Products is increased pursuant to this Condition 4.2, Buyer may cancel the undelivered balance of the contract by written notice to the Company served within 5 Business days of receipt of such notice given to the Company.
4.3 The Buyer shall be solely responsible for the payment of any new or additional customs duties that will be applicable but which were not in force at time of quotation.
4.4 In the event that the Buyer requests that Company makes alterations or additions to any works undertaken by the Company (including work in progress) the Company shall be entitled to make extra charges to cover the cost of such alterations or additions and Buyer shall obtain an estimate of such extra charges from the Company and confirm his acceptance thereof before requiring any alterations or extra work to be put in hand. Any failure on the part of Buyer to comply with this condition shall not affect the Company’s right to recover from Buyer any extra costs incurred by the Company.
5. VALUE ADDED TAX
5.1 Our contract is based on the net amount plus whatever the prevailing rate of value added tax is at the time of invoice. The rate applicable at the time of quotation is noted on the quotation, if the rate of value added tax changes the net price remains unchanged but the sales price including value added tax will change accordingly.
6. TERMS OF PAYMENT
6.1 Unless otherwise agreed in writing by the parties, payment of the invoice shall be made in full and in cleared funds within 10 Business Days of the date of the invoice.
6.2 Time of payment is of the essence.
6.3 If any sums become overdue, the Company may (without prejudice to any other right or remedy available to it) suspend all further deliveries until payment in full thereof has been made or (at its option) cancel the contract as regards any Products which remain to be delivered thereunder.
6.4 Without prejudice to any right or remedy available to it, the Company may at its discretion charge interest at the rate of 4 per cent above the prime lending rate for the time being of Allied Irish Banks PLC on any sum not paid on the due date. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. Buyer shall pay the interest together with the overdue amount.
6.5 Buyer shall not be entitled to withhold payment in whole or in part on the ground that it has a claim, counterclaim or set-off against the Company.
6.6 Should Buyer wish to defer delivery of all or part of the Products then unless otherwise agreed in writing:
6.6.1. The Company may invoice Buyer for such Products and the account shall fall due as stated in this condition 6; and
6.6.2. Buyer shall be liable to the Company in respect of charges for storage and handling as notified by the Company to Buyer from time to time.
7. DELIVERY
7.1 The time for delivery shall not be of the essence and any time specified for delivery of the Products is intended as an estimate only. The Company shall not be liable for any loss or damage whether arising directly or indirectly from delay in delivery.
7.2 The Company may deliver the Products by instalments and may invoice Buyer for each such instalment. Each instalment shall be treated as a separate contract so that failure to deliver or defect in one or more instalment shall not entitle Buyer to reject the other instalments.
7.3 If delivery is delayed through Buyer’s default or if Buyer declines or delays in accepting delivery, then and in either such case the Company may (without prejudice to any other right or remedy available to it) do all or any of the following:
7.3.1 charge as part of the price of the Products a reasonable storage fee and other costs incurred by the Company;
7.3.2. sell the Products for the Company’s account;
7.3.3. cancel the Contract as regards any Products that remain to be delivered thereunder.
Should the Company choose to store the goods the customer will be liable to take out all risk insurance on the goods for the time in storage.
7.4 Each delivery shall be considered as a separate contract and the failure of any delivery shall not vitiate the contract as to others.
7.5 The Company shall be entitled to suspend a delivery of the Products otherwise due to occur following service of a notice under Condition 12.2.3 until the earlier occurrence of:
7.5.1. such breech being remedied by Buyer; or
7.5.2. the termination of the relevant contract.
7.6 In the event where the product is created and shipped, it is Buyer’s responsibility to provide equipment and personnel to unload Products which are delivered by the Company’s employees or carriers engaged by the Company.
7.7 Our quotation assumes the roads going to the Buyers premise are accessible to lorries or vans needed to transport the Buyers Greenhouse. Also that there is sufficient access at the entrance to the Buyers property to drive onto the property to make the delivery. If access is not possible Buyer is solely responsible for all additional costs incurred.
8. ERECTION AND SITE WORKS
8.1 Where it is agreed in writing between the Company and Buyer that the Company shall undertake erection or site work, Buyer shall;
8.1.1. provide to the Company free and uninterrupted access to the site where the works are to be carried out;
8.1.2. free of charge, make available to the Company water, electricity, toilet and cleaning facilities at such site;
8.1.3. take all reasonable precautions for the safeguarding of equipment and plant which are delivered to the site where the works are to be carried out and which are to be used by the Company in connection with the erection or site works. The Buyer acknowledges that loss or damage resulting from Buyer’s failure to take such precautions shall be charge to Buyer’s account as part of the price for such erection or site work; and
8.1.4. where a structure or installation in whole or in part requires the consent of a Local Authority or similar body, obtaining such consent in advance. Any expenses incurred by the Company through Buyer’s failure to obtain such consent will be charged to Buyer’s account as part of the price for such erection or site work.
8.2 The time for completion of any erection or site work by the Company shall not be of the essence and any time specified for completion of erection or site work is intended as an estimate only. The Company shall not be liable for any loss or damage whether arising directly or indirectly from delay in completion.
9. CLAIMS
9.1. To the extent permitted by law, all conditions warranties or obligations whether expressed or implied by statute, common law or otherwise are excluded and the provisions of these Conditions shall apply in lieu thereof.
9.2. Buyer acknowledges that all illustrations, drawings and other documentation provided by the Company to Buyer or contained in the Company’s catalogues, price lists or advertisements are approximate representations only and are not binding in detail. All particulars of the Products are given in good faith as being approximately correct but will not form the basis of any claim against the Company.
9.3. Where the Company is arranging carriage, the Company shall not be liable for loss or damage to the Products in transit unless:
9.3.1. in the case of loss of the Products, within 3 Business Days of the date notified by the Company to the Buyer as being the date specified for delivery of the Products Buyer gives written notice to the Company that it has not received the products;
9.3.2. in the case of partial loss of or damage to the Products:
9.3.2.1. within 3 Business Days of the date of delivery of the Products to Buyer’s premises, Buyer gives written notice to the Company that the Products are lost in part or are damaged (as applicable);
9.3.2.2. Buyer retains the packaging for inspection by the carriers or their insurers.
9.3.2.3. Buyer complies with any requests of the Company in respect of the damaged Products including, without limitation, the taking of photos of the damaged Products, the provision to the Company of such photos and any other information required by the Company, and the return of the defective Goods carriage paid at Buyer’s risk to the Company’s premises (and Section 36 of the Sale of Goods Act 1893 (as amended) shall not apply).
9.4. The Company shall not be liable for defective Products unless:
9.4.1. Buyer gives written notice to the Company as soon as possible and in any case within 3 Business Days of the date of becoming aware of such defect specifying with reasonable detail any matter whereof it is alleged that the Products are defective; and
9.5. Buyer complies with any requests of the Company in respect of the damaged Products including, without limitation, the taking of photos of the damaged Products, the provision to the Company of such photos and any other information required by the Company and the return of the defective Goods carriage paid at Buyers risk to the Company’s premises (and Section 36 of the Sale of Goods Act 1893 (as amended) shall not apply).
9.6. The Company’s liability under Condition 9 whether based on negligence or any other cause of action shall be limited to repairing or replacing the lost, damaged or defective Products, or, at the Company’s option, repaying a corresponding proportion of the price paid by Buyer and the Company shall not be under any other liability thereunder whatsoever.
9.7. No claim will be met by the Company under Conditions 9.2 and 9.4 If in the opinion of the Company;
9.7.1. the defect is not due solely to defective materials or manufacture;
9.7.2. the Products have been misused or subjected to neglect, carelessness or abnormal conditions or involved in any accident or attempt at repair, replacement or modification or dealt with contrary to any directions issued by the Company; or
9.7.3. the terms of payment set out in Condition 6 have not been complied with.
9.8. In respect of any Products supplied by the Company but manufactured by third parties, any warranties or guarantees given to the Company by such third parties will, so far at the Company is able, be passed to the benefit of Buyer. The Company shall have no liability for defects in such Products that are not covered by warranties or guarantees given by such third parties.
10. RETENTION OF TITLE
10.1. Notwithstanding delivery the title in the Products will remain in the Company and subject to the following provisions of this Condition 9.8 Buyer will hold the Products as bailee for the Company until payment in full and in cleared funds of:
10.1.1. the full purchase price of the Products and any other products at any time supplied by the Company; and
10.1.2. all other sums due from Buyer to the Company on any account whatsoever.
10.2. Until title to the Products has passed to the Buyer, Buyer shall:
10.2.1. store the Products in such a way that they are readily identifiable as the property of the Company;
10.2.2. not remove, deface or obscure any identifying mark or packaging in or relating to the Products;
10.2.3. maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and provide the Company with a copy of such policy of insurance on request; and
10.2.4. give the Company such information relating to the Products as the Company may require from time to time.
10.3. The Company may at any time without notice inspect or recover possession of the Products which are the property of the Company and Buyer grants the Company an irrevocable licence to enter for that purpose any premises then occupied by Buyer.
10.4. The Company shall be entitled to maintain an action for the price of the Products, notwithstanding that the title to them has passed to the Buyer.
11. LIABILITY
11.1. Nothing in these Conditions shall limit or exclude the Company’s liability for:
11.1.1. death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable);
11.1.2. fraud or fraudulent misrepresentation;
11.1.3. breach of the terms implied by Section 12 of the Sale of Goods Act 1893 (as amended); or
11.1.4. any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
11.2. Subject to Condition 11.1:
11.2.1. The Company shall under no circumstances be liable to Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract made between Buyer and the Company.
12 TERMINATION
12.1. Unless expressly confirmed in writing by the Company, Buyer has no right to cancel any contract made between Buyer and the Company.
12.2. The Company shall have the right to cancel all or any contracts with Buyer or withhold delivery of any Products if Buyer;
12.2.1. Fails to pay any monies owing to the Company by the due date;
12.2.2. Commits a material breach which is incapable of remedy of any of the provisions of these Conditions;
12.2.3. Commits a material breach which is capable of remedy of any of the provisions of these Conditions and Buyer has failed to remedy such breach within 7 Business Days of the date of receipt from the Company of a notice specifying the breach and requiring it to be remedied;
12.2.4. Becomes subject to any voluntary arrangement, is unable to pay its debts within the meaning of Section 570 of the Companies Act 2014, has a receiver, manager, administrator or administrative receiver appointed over its assets, undertakings or income, has passed a resolution for its winding-up, or has a petition presented to any Court for its winding-up or for an administration order or suffers any similar or analogous proceedings in any jurisdiction;
12.2.5. Has any distraint, execution or other process levied or enforced on any of its property;
12.2.6. Is dissolved or ceases or threatens to cease trade; or
12.2.7. brings the reputation of the Company into serious disrepute or otherwise causes the Company to suffer material adverse publicity and following receipt from the Company of a notice informing Buyer that this is the case, Buyer has failed to remedy the matter, event or circumstance which caused or resulted in such serious disrepute or material adverse publicity within 22 Business Days of the date of such notice.
12.3. Termination of any contract between the Company and Buyer however arising shall not affect any of the rights, remedies obligations or liabilities of either the Company or Buyer that have accrued as at termination and Conditions 9.8, 11 and 17 will continue to be enforceable despite termination.
13. ASSIGNMENT
13.1 Buyer shall not assign or transfer or purport to assign or transfer any contract to which these Conditions apply or the benefit thereof to any other person.
14. SEVERANCE
14.1. If any condition or part of any Condition shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other Condition or part of any Condition all of which shall remain in full force and effect.
15. NOTICES
15.1. Any notice required or authorised to be given under this Agreement shall be in writing and may be served:
15.1.1. by international recorded delivery post; or
15.1.2. by email.
15.2. In proving service of any notice under this Agreement it shall be sufficient to prove:
15.2.1. in the case of a notice sent by international recorded delivery post, that the envelope containing the notice was properly addressed to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with the provisions of this Condition 15, stamped and posted and is recorded as having been signed for by a person at such address by the courier or postman delivering the envelope;
15.2.2. in the case of a notice sent by email, that the notice was successfully transmitted to the email address as the recipient may designate from time to time by notice given in accordance with the provisions of this Condition 15.
15.3. Notices shall be deemed served:
15.3.1. in the case of a notice sent by international recorded delivery post, on the fourth Business Day following the day of posting;
15.3.2. in the case of a notice sent by email, one hour after transmission, or if not sent on a Business Day, on the next Business Day.
16 FORCE MAJEURE
16.1. The Company reserves the right to:
16.1.1. defer the date of delivery;
16.1.2. cancel the contract; or
16.1.3. reduce the volume of the Products ordered by the Buyer (without liability to Buyer), if it is prevented from or delayed in the carrying on of its business due to a Force Majeure Event (as defined in Condition 16.3) provided that, if the Force Majeure Event in question continues for a continuous period of 10 Business Days, Buyer shall be entitled to give not less than 5 Business Days notice in writing to the Company to terminate the contract and in such circumstances Buyer shall pay for all Products supplied to the date of such termination, such payment to be made in accordance with 6.1.
16.2. If the Company is prevented from delivering part of the Products by reason of a Force Majeure Event, the Company shall deliver and Buyer shall take and pay for such part of the Products as the Company shall be able to deliver in accordance with the contract. The Company shall be entitled to deliver the Products in one or more consignments unless otherwise expressly agreed.
16.3. A ‘Force Majeure Event’ means the occurrence of any event beyond the Company’s reasonable control including, without limitation, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
16.4. If the Company has contracted to provide identical or similar products to more than one Buyer and is prevented from fully meeting its obligations by reason of any of the causes referred to in Condition 16.3, the Company may determine which contracts it will honour and to what extent at its own discretion.
17 GOVERNING LAW AND JURISDICTION
17.1. These conditions and any contract between Buyer and the Company shall be governed and construed in accordance with the law of the Republic of Ireland.
17.2. The courts of the Republic of Ireland shall have exclusive jurisdiction in respect of any claim or matter arising out of or in connection with these Conditions and any contract between Buyer and the Company and that accordingly any proceedings in respect of any such claim or matter shall be brought in such courts.