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1. GENERAL:
These conditions govern all contracts entered into by Avalon Conveyor Components Limited, trading as Avalon Engineering hereinafter referred to as “Seller”, for the supply or sale of goods or service. Any orders given to Seller or the acceptance of any tender by Seller shall be deemed to constitute an agreement to be bound by these conditions.
2. OTHER PRINTED OR STANDARD CONDITIONS:
It is agreed that only these conditions shall apply to contracts between Seller and Buyer named overleaf “Buyer” and any documents emanating from Buyer which contain printed or standard conditions have been and shall be sent by Buyer and received by Seller on the understanding that they appear on Buyers documents because they are printed thereon but have no legal effect whatever and Buyer waivers any rights which Buyer otherwise might have to rely on such conditions.
3. PREVIOUS CONDITIONS AND VARIATIONS:
These conditions shall have effect in place of any other conditions which may have previously been notified by Seller to Buyer. No addition or variation to these conditions shall be made or apply, unless expressly agreed in writing by Seller and Buyer.
4. DESCRIPTION:
(a) All goods are supplied subject to availability to Seller of suitable materials and components. Seller reserves the right to substitute materials and components where necessary.
(b) All designs, drawings, descriptive matter, weights, dimensions, specifications, brochures, catalogues, price lists and all advertising matter are approximate and by way of identification only and are intended to merely present a general idea of the goods and services described therein and they shall not form part of any contract, or give rise to any independent or collateral liability of any kind. All prices/discounts quoted therein are subject to alteration or withdrawal from time to time without notice.
(c) All designs, drawings, specifications, brochures, price lists and advertising matter are the copyright of and shall remain the property of Seller and must not be copied, reproduced or divulged either directly or indirectly to any other person without obtaining permission of Seller.
5. SELECTION OF GOODS:
(a) To assist Buyer to select goods which most nearly meet Buyers requirements, Seller includes relevant information in its brochures and catalogues which is available to Seller on the terms of this clause 5.
(b) Buyer: (i) Acknowledges that selecting goods requires Buyer to use its own skill and judgement as to which of Sellers goods are suitable for Buyer requirements.
(ii) Warrants that it has such skill and judgement and undertakes to exercise it at all times in selecting goods;
(iii) Agrees it will be responsible for ensuring that goods selected are fit for Buyers purpose; and
(iv) Agrees that Seller shall not be responsible for any selection made by Buyer and will not have any liability to Buyer for any loss, damages, costs or expenses suffered by Buyer as a result thereof;
(v) Buyer will not, during or after the expiry or termination of this agreement, without the prior written consent of Seller, infringe or permit the infringement of Sellers Copyright or use or adopt any trade mark, trade name or commercial designation that includes or is similar to or maybe mistaken for the whole or any part of any trade mark or trade name used by Seller.
6. DESPATCH AND DELIVERY:
(a) Any time or date quoted by Seller for delivery is given and intended as an estimate only and subject to availability of stock. Seller shall not be liable in any circumstances for any loss or damage of any kind caused by failure to delivery within such time.
7. CARRIAGE:
(a) Carriage charges will be invoiced to Buyer at Sellers rates prevailing at time of despatch.
8. LOSS AND DAMAGE IN TRANSIT:
In all cases where Seller carries or procures the carriage of the goods, Seller shall not in any event be liable for loss of or damage to the goods in transit unless the following conditions are complied with:
(a) In the case of any loss from a consignment of goods or of damage to the goods Seller must be notified in writing within 3 working days of delivery to Buyer:
(b) In the case of non-delivery of the whole consignment of goods, Seller must be notified within 14 working days after the date of invoice.
9. PASSING OF PROPERTY:
(a) Notwithstanding the provision of clause 10 as to the passing of risk, the goods shall remain the sole and absolute property of Seller until Buyer has paid in full the agreed price thereof and all other sums due from Buyer to Seller whether under this contract or otherwise (including any interest thereon). Notwithstanding such retention of title, Seller shall be entitled to maintain an action for the price of the goods as soon as payment falls due.
(b) Buyer acknowledges that it is in possession of the goods solely as bailee and a fiduciary capacity for Seller until such time as the agreed price thereof and all other sums due from the Buyer to Seller whether under this contract or any other contract have been paid in full. Until such time, Buyer will store the goods on its premises separately from other goods on its premises separately from other goods which make them readily identifiable as belonging to Seller and shall not alter, modify or add to any such goods any marking or identification on them and shall maintain them in good condition.
(c) If payment for the goods supplied under this or any other contract is overdue, in whole or in part, Seller may (without prejudice to any of its other rights) retake possession of and or resell any goods, the title to which it has retained and the Buyer shall, upon request of Seller, allow Seller to enter its premises during normal working hours for the purpose of recovering possession of such goods.
(d) Notwithstanding any other agreement as to the terms of payment, the total invoice price shall become immediately due and payable and Seller shall have the right forthwith to terminate this contract (without prejudice to any other of its rights) upon the occurrence of any of the following events:
- If Buyer commits any act of bankruptcy or if a petition of bankruptcy is presented against Buyer:
- If Buyer ceases or threatens to cease to carry on business:
- If Buyer shall enter into any negotiations for an arrangement or composition with its creditors:
- In the event of the Buyer being a limited company, if a petition is presented for an administration order or if a petition is presented or a resolution is proposed to wind up Buyer or if a receiver of its assets or undertaking or part thereof is appointed:
- If any distress or execution is levied on the Buyer. Upon any such termination Seller shall have the rights of repossession and resale as are set out in subclause (c) above.
Subject to the provisions of this clause and notwithstanding that the property in the goods has not passed, Buyer may not agree to sell the goods in the ordinary course of its business subject to the express condition that such agreement to sell shall take place as agent and bailee for Seller whether Buyer sells on its own account or not and that proceeds of sale (less Buyers profit margin) are held in trust for Seller and kept separate from any moneys or property of Buyer or any third party.
Buyer shall not in any circumstances place proceeds of sales of goods supplied by Seller in any overdrawn bank account, so long as any sum payable to Seller remains outstanding.
10. PASSING OF RISKS:
In cases where Seller carries or arranges the carriage of the goods, risk passes upon delivery by the carrier to or to the order of the Buyer. In all other cases, risk passes on collection from Sellers premises.
11. PAYMENT:
Unless otherwise agreed in writing, payment in full is due on delivery of the goods.
Time of payment is in all cases of the essence.
Buyer shall not in any circumstances or for any reason whatsoever be entitled to make any deduction or withhold any sum from the price of the goods by way of set-off.
Seller should be entitled to charge interest at the rate of 6% per annum above Allied Irish Bank Plc lending rate for the time being on all outstanding accounts, such interest to accrue day to day from the day that the account becomes due to the day of actual payment thereof, whether before or after judgment.
12. SAMPLES:
All samples are to remain the property of Seller and to be returned to Seller on request.
13. EXTENT AND LIMITS OF LIABILITY (DEFECTIVE GOODS):
In the event of the delivery being defective the Seller undertakes for a period of 12 months from the date of despatch to correct such defects or to deliver a new product.
Defects due to improper storage, incorrect installation, insufficient maintenance or modifications carried out without Sellers written consent, normal wear and tear or use contrary to the Sellers manual or technical specifications are of no consequence to the Seller.
In the event of personal injury caused by the delivered product, Seller is only liable if it is established that the personal injury is due to negligence on the Sellers part or any others for whom Seller is liable.
Seller is under no circumstances liable for such injuries, damages as mentioned in clause (c), if such injuries or damages are due to the use of the delivered products contrary to the Seller i.e. sub-contractors or independent transporters.
14. DEFAULT OR INSOLVENCY:
Without prejudice to the provisions of clause 9(d) of these conditions, Seller shall be entitled forthwith to terminate this contract (without prejudice to any of its rights inter alia to recover payment due in respect of delivered goods and all expenses properly incurred by Seller in performing the contract), and/or to cancel further deliveries in the event of breach of this agreement by Buyer, or on the occurrence of any of the events set out in clause 9(d) hereof.
15. PROPER LAW:
The proper law of the contract is Irish law and Buyer shall be subject to the jurisdiction of the Irish Courts.
AVALON CONVEYOR COMPONENTS LTD. t/a AVALON ENGINEERING