October 12, 2016

Conditions of Sale

1.             Interpretation

1.1          Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Ireland are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from the Supplier.

Force Majeure Event: has the meaning given in clause 10.

Goods:  the goods (or any part of them) set out in the Order.

Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form.

Specification: any specification for the Goods that is agreed in writing by the Customer and the Supplier.

Supplier: Fispak Ltd, Red Cow Business Park, Dublin 22

Construction. In these Conditions, the following rules apply:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors or permitted assigns.

(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(d) A reference to writing or written includes faxes and e-mails.

2.            Basis of contract

2.1          These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2          The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

2.3          The Contract shall come into existence when the Supplier receives and accepts the Order.

2.4          The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.5          Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures shall not form part of the Contract or have any contractual force.

2.6          A quotation for the Goods given by the Supplier shall not constitute an offer.

3.            Goods

3.1          To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.1 shall survive termination of the Contract.

3.2          The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

4.            Delivery

4.1          The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, reference numbers, the type and quantity of the Goods, special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

4.2          The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may mutually agree (Delivery Location).

4.3          Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

4.4          Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods.

4.5          Should the Supplier be prevented from delivering the goods at any time provided for delivery by reason of any unexpected or exceptional cause beyond the control of the Supplier, or by reason of any industrial dispute involving the Supplier in any manner whatsoever, the time through delivery shall be extended, at the Supplier s option, to such time as it will allow the Supplier to effect delivery of the goods. The Supplier shall have the option to cancel the contract if it is prevented for the reason aforesaid from effecting delivery and in this event the Supplier shall not be liable to the Purchaser for any loss sustained by the Purchaser as a result of such delay or cancellation.

4.6          If the Customer fails to accept delivery of the Goods within seven (7) Business Days of the first attempted delivery then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract delivery of the Goods shall be deemed completed at 9.00 am on the seventh (7th) Business Day after the day on which the delivery was first attempted.

4.7          The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including fifteen percent 15% more or less than the quantity of Goods ordered.

4.8          The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5.            Quality

5.1          The Supplier warrants that on delivery the Goods shall be free from material defects in design, material and workmanship and be of satisfactory quality.

5.2          Subject to clause 5.3, if:

(a)           the Customer gives notice in writing to the Supplier within two days of delivery of the Goods that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b)           the Supplier is given a reasonable opportunity of examining such Goods; and

(c)           the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business,

the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3          The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:

(a)           the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

(b)           the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c)           the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;

(d)           the Customer alters or repairs such Goods without the written consent of the Supplier;

(e)           the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f)            the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4          Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

6.            Title and risk

6.1          The risk in the Goods shall pass to the Customer on completion of delivery.

6.2          Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:

(a)           the Goods; and

(b)           any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.

6.3          Until title to the Goods has passed to the Customer, the Customer shall: 

(a)           hold the Goods on a fiduciary basis as the Supplier’s bailee; 

(b)           store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property; 

(c)           not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(d)           maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(e)           notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and

(f)            give the Supplier such information relating to the Goods as the Supplier may require from time to time,

but the Customer may resell or use the Goods in the ordinary course of its business.

6.4          If before title to the Goods passes to the Customer the Customer becomes subject to any of the events noted in clause 8.1, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer where the Goods are stored in order to recover them

7.            Price and payment

7.1          The price of the Goods shall be the price set out in the invoice.

7.2          The Supplier may, by giving notice to the Customer at any time up to seven (7) Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a)           any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)           any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(c)           any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

7.3          The price of the Goods is exclusive of (VAT) which shall be included on the invoice to the Customer.

7.4          The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month of invoice issue unless otherwise agreed in writing. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

7.5          If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 8.0% per annum above the European Central Bank base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.6          The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

8.            Customer’s insolvency or incapacity

8.1          If the Customer becomes or is about to become subject to any form of insolvency or bankruptcy proceedings, has an examiner or receiver appointed over any or all of its assets, or the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

9.            Limitation of liability

9.1          Nothing in these Conditions shall limit or exclude the Supplier’s liability for: 

(a)           death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b)           fraud or fraudulent misrepresentation; or

(c)           any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

9.2          Subject to clause 9.1:

(a)           the Supplier shall under no circumstances whatever be liable to the Customer, 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 the Contract; and 

(b)           the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.

10.          Force majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.

11.          General

11.1        Assignment and subcontracting.

(a)           The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

(b)           The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

11.2        Notices.

(a)           Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.

(b)           A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by registered post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

(c)           The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.3        Severance.

(a)           If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b)           If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

11.4        Waiver.

A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

11.5        Third party rights.

A person who is not a party to the Contract shall not have any rights under or in connection with it.

11.6        Variation.

Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

11.7        Governing law and jurisdiction.

The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Irish law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Ireland.