In these Conditions:
- “Conditions” means the terms of this document and any special terms and conditions agreed in writing by the Seller;
- “Contract” means a contract for the sale and purchase of Goods on the terms of the Conditions, as further described in Clause 2.3;
- “Buyer” means the person specified in the Order Confirmation as purchaser of the Goods from the Seller;
- “Force Majeure” means, in relation to the Seller, 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;
- “Goods” means the articles which the Buyer agrees to buy from the Seller, including any instalments thereof, as specified in the Order Confirmation;
- “Invoice” means any invoice issued by the Seller in respect of the Goods;
- “Order Confirmation” means the confirmation or written acceptance of an order issued by the Seller to the Buyer on which reference is made to these Conditions;
- “Price” means the price for the Goods, which is (save, in each case, to the extent otherwise stated in the Order Confirmation) exclusive of packaging, carriage, insurance and VAT;
- “Seller” means Carbery Food Ingredients Limited, a company registered in Ireland with company registration number 22819; and
- “VAT” means any value added tax and any goods and services, sales or other turnover tax, imposition or levy of a like nature chargeable in respect of the sale of the Goods to the Buyer.
2. Conditions Applicable:
- 2.1 The 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 or conditions which the Buyer may purport to apply under any purchase order or otherwise.
- 2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase goods pursuant to the Conditions.
- 2.3 A contract for the sale of the Goods shall come into existence when the Seller issues an Order Confirmation for the Buyer’s order for the Goods and the contract shall be on the terms of the Conditions, to the exclusion of all other terms and conditions whatsoever.
- 2.4 Acceptance of delivery of the Goods by the Buyer shall be deemed conclusive evidence of the Buyer’s acceptance of the Conditions.
- 2.5 Any variation to the Conditions shall be inapplicable unless evidenced by writing signed on behalf of the Seller by a duly authorised person. [The Buyer is notified that no person has been authorised by the Seller in this regard, and further, that no person may be taken by the Buyer to have any such authority unless such person has presented to the Buyer a written instrument, signed by a director of the Seller, conferring upon such person such authority in connection with the Goods. ]
- 3.1 The Price of the Goods shall be the price set out in the Order Confirmation. The Price is exclusive of VAT.
- 3.2 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.
- 3.3 Except as otherwise specified or agreed between the parties in writing, all prices stated by the Seller are on an Ex Works (EXW, as defined by the Incoterms® Rules 2020) 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.
- 4.1 In addition to paying the Price, the Buyer shall pay to the Seller all applicable VAT.
- 4.2 The Buyer shall pay direct to the Seller the Price, any VAT, and any costs of packaging, insurance, and delivery specified in the Invoice, on the date specified in the Invoice.
- 4.3 Except as otherwise specified on the Invoice or agreed between the parties in writing, the Buyer shall pay the Price within thirty (30) days of the date of the 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 is overdue the Seller is entitled, without prejudice to any of its other rights or remedies, to suspend all further deliveries or supplies of goods.
- 4.4 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 the Contract or any other contract for the purchase of goods made between the Seller and the Buyer.
- 4.5 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.
- 4.6 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 higher of:
(a) the rate per cent per annum as may be specified from time to time pursuant to regulation 5 of the European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S.I. No. 580 of 2012); and
(b) the rate which is 2 percentage points above the rate of interest applicable to the principal euro overdraft rate of the Seller from time to time.
5. The Goods:
- 5.1 The quantity and description of the Goods shall be as set out in the Order Confirmation.
- 5.2 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.
- 5.3 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.
- 5.4 Where the Goods are to be supplied in accordance with any 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.
- 5.5 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.
6. No cancellations: 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.
- 7.1 The Seller warrants that it will have the right to sell the Goods to the Buyer at the time at which title to the Goods is to pass to the Buyer, and further warrants that the Goods will be fit for such purposes as may be specifically notified in writing by the Seller to the Buyer.
- 7.2 All other warranties, conditions or terms relating to the Goods (other than those provided for in Section 12 of the Sale of Goods Act 1893), whether implied by statute or common law or otherwise, are excluded. Nothing in the Conditions shall affect the statutory rights of a person to whom the Goods are sold who is acting as a consumer.
- 8.1 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.
- 8.2 If the Goods are not received by the Buyer within six (6) days from the date of the relevant invoice, the carrier and the Seller must at once be informed.
- 8.3 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.
- 8.4 Deviations in quantity of the Goods (representing not more than ten (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.
- 8.5 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:
- (a) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
- (b) 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.
- 8.6 If the Seller fails to deliver the Goods (or any instalment) for any reason other than Force Majeure 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.
- 9.1 Title to the Goods shall not pass from the Seller until the Seller has received in full, in cash or cleared funds, plus any applicable VAT:
- (a) the Price and any other payments due for the Goods; and
- (b) all payments then due for all other goods agreed to be sold by the Seller to the Buyer, whether under the Contract or any other contract.
- 9.2 Until title to the Goods passes to the Buyer in accordance with Clause 9.1, 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.
- 9.3 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.
- 9.4 The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller and nothing in this Clause 9 shall confer any right upon the Buyer to return the Goods.
- 9.5 Until such time as property in the Goods passes from the Seller, the Buyer shall, upon request, deliver up the Goods to the Seller. If the Buyer fails to do so the Seller and/or its agents may enter upon any premises owned, occupied, or controlled by the Buyer where the Goods are situated and repossess the Goods.
10. Risk of Loss or Damage
- 10.1 Notwithstanding that 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:
(a) 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;
(b) in the case of Goods to be delivered other than at the Seller’s premises:
(i) at the time when the Goods are delivered to a carrier for transmission to the Buyer; or
(ii) at the time of the prior delivery of the Goods to the stipulated place of delivery; or
(c) 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.
- 10.2 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:
(a) 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;
(b) insure and keep insured the Goods against ‘all risks’ to the reasonable satisfaction of the Seller in an amount at least equal to the price to be paid therefor by the Buyer; and
(c) hold upon trust for the Seller absolutely any and all proceeds of such insurance.
- 10.3 The Buyer shall whenever requested by the Seller, produce a copy of the policy of insurance referred to in Sub-clause 10.2(b) and, without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
11. Remedies of Buyer and Seller’s Liability:
- 11.1 In the event of a breach by the Seller of any warranty in relation to the Goods, the Seller shall, at its option, either repair or replace the Goods or issue credit to the Buyer, provided that:
- (a) the Seller is notified in writing within seven (7) days of the discovery of any such defects by the Buyer and in any event not later than fourteen (14) days after delivery;
- (b) the relevant Goods are returned to the Seller at the cost of the Buyer;
- (c) 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 warranty has occurred, 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
- (d) 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.
- 11.2 The Seller’s liability to the Buyer in respect of any defects in the Goods shall be contingent upon the conditions in Clause 11.1 being complied with in full including, without limitation, any time limits referred to. If the conditions set out in Clause 11.1 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.
- 11.3 Without prejudice to Clause 11.1, and in each case to the fullest extent permitted by applicable law, the Seller shall not be liable to the Buyer in contract, tort or otherwise howsoever for any of the following losses or damage (whether or not such loss or damage was foreseen, foreseeable, known or otherwise):
(a) loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data; and
(b) any indirect or consequential loss howsoever caused (including, for the avoidance of doubt, whether such loss or damage is of a type specified in Sub-clause 11.3(a)).
- 11.4 In no event shall the liability of the Seller to the Buyer in respect of, or in relation to, or in connection with the Goods, whether arising in contract, tort or otherwise, exceed the price (exclusive of VAT) actually paid by the Buyer to the Seller in respect of the relevant Goods.
- 11.5 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.
- 11.6 The Seller’s liability under this Clause 11 shall be limited to a period of one (1) year from the date of receipt of the Goods by the Buyer.
- 11.7 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 (30) days of written notice specifying the default.
12. 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 Force Majeure.
13. Default by Buyer:
- 13.1 If:
(a) the Buyer breaches any terms of the Contract; or
(b) 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
(c) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
(d) the Buyer ceases, or threatens to cease, to carry on business; or
(e) 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.
- 13.2 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.
- 13.3 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.
- 13.4 No 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.
- 13.5 Partial Invalidity: If any of the Conditions is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability of any other of the Conditions.
14. Law and Jurisdiction: All contracts between the Seller and the Buyer in respect of, or in relation to, or in connection with, the Goods and any non-contractual obligations arising out of or in connection with any such contracts are governed by and shall be construed in accordance with the laws of Ireland. For the benefit of the Seller, the Buyer hereby agrees that the courts of Ireland shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with the Goods or their sale to and purchase by the Buyer and, for such purposes, the Buyer irrevocably submits to the jurisdiction of the courts of Ireland.
- 15.1 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.
- 15.2 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.
- 15.3 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.
- 15.4 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.
- 15.5 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.
- 15.6 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.
- 15.7 All orders for Services shall be deemed to be an offer by the Buyer to purchase the Services pursuant to the Conditions.
- 15.8 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.
- 15.9 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.
- 15.10 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.
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.