Terms and Conditions of Sale

  1. GENERAL
    1. These Terms and Conditions shall apply to all sales of goods, including any instalment of goods, (the “Goods”) entered into between Carbery Food Ingredients Limited (the “Seller”) and the purchaser of the Goods (the “Buyer”) to the exclusion of all other terms and conditions. No variation or purported variation (including, but not limited to, any terms and conditions set out in the Buyer’s contract, purchase order or order form), whether before or after the making of the Contract, shall have any effect in connection with the sale and purchase of Goods unless expressly agreed to in writing by the Seller.
    2. A contract for the sale and purchase of Goods in accordance with these terms and conditions (the “Contract”) between the Buyer and the Seller shall come into existence when an authorised representative of the Seller issues a written acceptance of the Buyer’s order for the Goods.
    3. Subject as expressly provided in these terms and conditions (the “Conditions”), and except where the Goods are sold to a person dealing as a consumer and except for those arising under Section 12 of the Sale of Goods Act, 1893, all warranties, conditions or other terms implied by statute or common law or otherwise (including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose) are excluded to the fullest extent permitted by law. Where the Goods are sold under a consumer transaction, the statutory rights of the Buyer are not affected by these Conditions.
    4. No order which has been accepted by the Seller may be cancelled by the Buyer except with the prior written agreement of the Seller and on such terms as the Seller may require including without limitation that the Buyer shall indemnify the Seller in full against all loss, damages, charges and expenses incurred by the Seller as a result of or in connection with the cancellation.
    5. Words and expressions defined in the Sale of Goods Acts, 1893 and 1980 shall, when used in these Conditions, save where the context otherwise requires, bear the same meanings as therein.
    6. Any reference to any law or a statutory enactment or provision shall be construed as a reference to any such law or statutory enactment or provision as it may be amended or extended from time to time.
  2. BASIS OF THE SALE
    1. All orders for Goods shall be deemed to be an offer by the Buyer to purchase the Goods pursuant to the Conditions. The Seller will only sell the Goods to the Buyer subject to and in accordance with the Conditions.
    2. The Buyer is responsible to the Seller for ensuring the accuracy of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
    3. Unless otherwise agreed between the Seller and the Buyer, the quantity, quality, description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
    4. Where the Goods are to be supplied in accordance with the Seller’s specifications, the Seller reserves the right to make any changes to the specification for the Goods which are required to conform with any applicable statutory or EU requirements or which do not materially affect their quality or performance.
    5. Where the Goods are to be supplied in accordance with specification supplied by the Buyer or agreed between the Buyer and the Seller, the parties agree that the specification shall not be changed (subject to any change necessary for the purposes of complying with any applicable statutory or EU requirements or amendment to any such requirements) without the prior written agreement of both the Buyer and the Seller.
    6. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification supplied by the Buyer or any instructions from the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with the Seller’s use of the Buyer’s specification.
  3. TRANSFERSHIP OF OWNERSHIP
      1. Title to and the property in the Goods shall remain vested in the Seller until the Seller has received payment in full in cash or cleared funds for the Goods (and all applicable Value Added Tax).
      2. Title to and the property in the Goods shall remain vested in the Seller until the Seller has received payment in full in cash or cleared funds (and all applicable Value Added Tax) for all other goods agreed to be sold by the Seller to the Buyer for which payment is then due whether under this or any other Contract.
    1. If the Buyer shall sell or otherwise dispose of the Goods before payment in full has been made to the Seller, the Buyer shall in such case act on his own account and not as agent for the Seller and shall hold all monies received by him from such sale or disposal in trust for the Seller and shall on request provide the names and addresses of the persons to whom such disposals have been made together with all necessary particulars to enable the Seller to recover any outstanding sums due from such persons.
    2. So long as the property in the goods shall remain in the Seller, the Buyer shall hold the Goods as fiduciary agent and bailee for the Seller and store the Goods so as to clearly show them to be the property of the Seller, and the Seller shall have the right, without prejudice to the Buyer’s obligations to purchase the Goods to require the Buyer to deliver up the Goods to the Seller and the Buyer shall provide or procure access for the Seller to the Buyer’s or any other premises where the Goods are located for the purposes of facilitating the Seller’s re-possession of the Goods.
    3. Nothing in this clause shall confer any right upon the Buyer to return the Goods. The Seller may maintain an action for the price notwithstanding that property in the Goods shall not have been vested in the Buyer.
  4. RISK OF LOSS OR DAMAGE
    1. Notwithstanding that the property in the Goods may not have passed to the Buyer, the Buyer shall carry all risk of loss of and damage to the Goods as follows:
      1. in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection;
      2. in the case of Goods to be delivered other than at the Seller’s premises:
        1. at the time when the Goods are delivered to a carrier for transmission to the Buyer; or
        2. at the time of the prior delivery of the Goods to the stipulated place of delivery; or
        3. if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods, any 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.
    2. From when the risk of loss of and damage to the Goods commences to be carried by the Buyer until the Seller is paid in full for the Goods, the Buyer shall:
      1. indemnify and keep indemnified the Seller on demand against all loss of and damage to the Goods and against reduction in the re-sale value thereof below the price to be paid therefor by the Buyer;
      2. insure and keep insured the Goods in an amount at least equal to the price to be paid therefor by the Buyer; and
      3. hold upon trust for the Seller absolutely any and all proceeds of such insurance.
  5. DELIVERY
    1. Any times quoted for delivery are estimates only and the Seller shall not be liable for failure to deliver within the time quoted however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
    2. If the Goods are not received by the Buyer within six days from the date of the relevant invoice, the carrier and the Seller must at once be informed.
    3. The Seller shall be entitled to make partial deliveries or deliveries by instalments and the Conditions shall apply to each such partial delivery or delivery by instalment. Any claim by the Buyer in respect of one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated or to reject the entirety of the Goods.
    4. Deviations in quantity of the Goods (representing not more than 10 per cent in value) from that stated in the Contract shall not give the Buyer any right to treat the Contract as a whole as repudiated nor to reject the Goods or to claim damages and the quantity so delivered shall be deemed to be the quantity so ordered and the Buyer shall be obliged to accept and pay at the Contract rate for the quantity of the Goods delivered.
    5. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault), then, without prejudice to any other right or remedy available to the Seller, the Seller may:
      1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or.
      2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract. .
    6. If the Seller fails to deliver the Goods (or any instalment) for any reason other than Force Majeure (as defined in this Contract) or the fault of the Buyer, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
  6. REMEDIES FOR ANY DEFECTS ETC
    1. If by reason of any defect in the Goods there shall be a breach of any implied condition or warranty applicable thereto, the Seller shall, at its option, either repair or replace the Goods or issue credit to the Buyer, provided that:
      1. the Seller is notified in writing within seven days of the discovery of any such defects by the Buyer and in any event not later than 14 days after delivery;
      2. the relevant Goods are returned to the Seller at the cost of the Buyer;
      3. the examination of such Goods by the Seller 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 Seller; and
      4. the Buyer shall pay to the Seller the costs and expenses (as stated by the Seller) of any examination of the Goods as a result of which the Seller does not admit liability.
    2. The Seller’s liability to the Buyer in respect of any defects in the Goods shall be contingent upon the conditions in 6(a) being complied with in full including, without limitation, any time limits referred to. If the conditions set out in 6(a) are not complied with, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
    3. The Seller’s liability for any claim, whatever 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, re-sale, replacement or use of any of the Goods shall in no case exceed the price actually paid by the Buyer (exclusive of Value Added Tax) to the Seller for the Goods which give rise to the claim, plus reasonable vouched expenses of customs, taxes, freight and insurance. In no event shall the Seller be liable for any of the following losses or damage (whether or not such loss or damage was foreseen, foreseeable, known or otherwise): any costs, loss of actual or anticipated profits, loss of revenue, loss of opportunity loss of business, loss of goodwill or special or consequential losses or damages suffered by the Buyer, including without limitation interest charges. Nothing contained in this paragraph shall by implication create any liability or obligation on the part of the Seller, or affect or diminish any disclaimer or liability elsewhere contained herein.
    4. 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 Seller shall not be liable in contract, tort or otherwise for any loss, damage, costs, 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.
    5. The Seller’s liability under this provision shall be limited to a period of one year from the date of receipt of the Goods by the Buyer.
    6. The Buyer shall not reject any Goods or cancel or purport to cancel the Contract or any part of it because of any alleged default unless the Seller shall have failed to correct such alleged default within thirty days of written notice specifying the default.
  7. DEFAULT BY BUYER
    1. If:
      1. the Buyer breaches any terms of the Contract; or
      2. the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an examination order or goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction); or
      3. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
      4. the Buyer ceases, or threatens to cease, to carry on business; or
      5. the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly,
      then, in any such event, the Seller 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 Seller.
    2. In the event the Seller exercises any rights it may have to stop Goods in transit because of the Buyer’s financial condition, the Seller may at its option resell such Goods at public or private sale without notice to the Buyer and without affecting the Seller’s rights to hold the Buyer liable for any loss or damage caused by breach of the Contract by the Buyer.
    3. Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
  8. PAYMENT AND CHARGES
    1. The price of the Goods shall be as specified in the Contract by the Seller and is exclusive of any applicable Value Added Tax which shall be additionally payable by the Buyer to the Seller at the prevailing rate.
    2. The Seller reserves the right, on notice to the Buyer at any time prior to delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any change in delivery dates, quantities or specifications requested by the Buyer or any delay caused by any instructions of the Buyer or the failure of the Buyer to give the Seller adequate information or instructions or any factor beyond the Seller’s control.
    3. Except as otherwise specified or agreed between the parties in writing, all prices stated by the Seller are on an ex works basis and, where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to discharge the Seller’s charges for transport, packaging and insurance.
    4. Except as otherwise specified or agreed between the parties in writing, the Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. If any payment if overdue the Seller is entitled, without prejudice to any of its other rights or remedies, to suspend all further deliveries or supplies of goods.
    5. Payments made by the Buyer to the Seller shall be made free and clear of any deduction or set off of any sums which may be or may become owing by the Seller to the Buyer under this Contract or any other Contract for the purchase of Goods made between the Seller and the Buyer.
    6. The Buyer shall be solely responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for procuring any licences, permits, consents or similar arising out of or in connection with the delivery of the Goods and for the payment of any duties, taxes, charges, levies tariffs or similar on them.
    7. If the Buyer fails to pay to the Seller any amount payable to it under the Contract on the due date then the Buyer shall pay on demand from time to time to the Seller, interest (as well after as before any judgment) on that amount, from the due date to the date of payment in full, at the rate per cent per annum as may be specified from time to time pursuant to the regulation 5 of the European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S.I. No. 580 of 2012).
  9. FORCE MAJEURE The Seller shall not be under any liability of whatever kind for either the delay in performance or the non-performance in whole or in part of its obligations under the Contract due to causes beyond the control of the Seller or beyond the control of the Seller’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 an agency or sub-division thereof, regulations, acts, restrictions, measures or laws of any kind, judicial actions, labour disputes, lock-outs, strikes or other industrial action (in each case whether affecting the Seller or a third party), embargoes, illness, accident, fire, explosion, flood, tempest or other acts of God, delay in delivery to the Seller or the Seller’s suppliers or shortage of labour, fuel, raw materials or machinery or technical failure.
  10. ASSIGNMENT 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 or condition (express or implied) forming part thereof or relating to the Goods.
  11. GOVERNING LAW This Contract shall be governed and construed in all respects in accordance with the laws of the Republic of Ireland. The parties submit to the exclusive jurisdiction of the Irish courts.
  12. MISCELLANEOUS
    1. The Contract shall be construed without regard to the rule of construction known as “ejusdem generis”. If any ambiguity or question of intent or interpretation arises, the Contract shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any of the provisions of the Contract.
    2. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
    3. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
    4. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
    5. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
    6. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      1. In these Conditions, “Services” means only such services as the Seller has agreed in writing to provide to the Buyer whether in addition to or in conjunction with the supply of Goods or otherwise as set out in the Seller’s written acceptance of the Buyer’s order.
      2. All orders for Services shall be deemed to be an offer by the Buyer to purchase the Services pursuant to the Conditions.
      3. The Conditions shall apply to all contracts for the supply of Services by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order or otherwise and no conduct by the Seller constitutes acceptance of any terms or conditions put forward by the Buyer.
      4. The term “Goods” where used in the Conditions includes (where the context admits) Services to the intent and effect that each of the paragraphs in the Conditions shall apply to Services unless the context otherwise requires.
    7. The Seller may, in its absolute discretion, amend the Conditions at any time. Such amended Conditions will be effective from the date upon which they are posted on the Seller’s website accessible at the following address www.carbery.com and shall apply immediately to all orders after such effective date.
Version 1.0 January 2019