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Terms of sale

Dairygold Food Ingredients Limited (Ireland)

 

GENERAL CONDITIONS OF SALE

1. BASIS OF CONTRACT

Dairygold Food Ingredients Limited (the “Company” which expression shall include all its trading names and divisions) contracts with its customers (the “Customer”) subject to and upon the following terms and conditions of sale which shall exclusively govern the sale of the Company’s goods (the “Goods”) and the provision by the Company of all services (the “Services”) notwithstanding any terms or conditions, whether oral or written, or purported variations contained on any order or other correspondence submitted by the Customer to the Company save to the extent that such variation is expressly agreed and accepted in writing by a duly authorised officer of the Company. All Customer orders are subject to acceptance by the Company and the Company reserves the right to sub-contract fulfillment of the order or any part thereof. Save as provided above no officer, employee or agent of the Company has authority to vary, add or depart from these terms and conditions or make any representations in relation to the Goods or Services sold.

2. DELIVERY AND RISK

(a) The Company shall endeavour to keep to any stated dispatch, delivery, installation or completion date but the Company shall not be liable for any loss, damage or expense resulting from any delay.

(b) Where the Customer fails to take delivery of or has failed to collect the Goods on the delivery date specified on the Order, the Company reserves the right at its sole discretion to terminate the agreement for the supply of Goods without notice or penalty or to charge a fee in respect of additional costs incurred pending delivery of the Goods.

(c) Any part delivery or installment of the Goods shall not entitle the Customer to treat the contract as repudiated in regard to any balance or installment remaining deliverable.

(d) The terms of delivery of the Goods shall be set out by the Company on its contract documentation and shall be in accordance with Incoterms 2010 (as amended from time to time). In the absence of any such specified terms of delivery, the Goods shall be deemed to be delivered ex-works. (referred to as “Delivered Goods” and/or “Delivery”). Upon the Delivery of the Goods to the Customer within the meaning of the preceding paragraph all risk in the Goods whether insurable or not relating to the Goods shall pass to the Customer notwithstanding the provisions of Clause 4 below.

3. PRICES AND PAYMENT

(a) Quotations issued by the Company are issued in good faith however the Company reserves the right to alter its prices at any time up to acceptance in writing by the Company of the Buyer’s purchase order. Quotations issued expire after 5 working days from date of issue unless otherwise agreed by the Company at is sole discretion.

(b) In the event that the Customer amends the specification of the Goods by specifying additional or different requirements after the Company has accepted the Customers purchase order and the Company accepts such amendments then the Company reserves the right to increase the price accordingly.

(c) Goods and Services are supplied subject to such taxes or assessments as may be in force from time to time in respect of the Goods or Services so that such taxes and/or assessments, if applicable, shall be for the Customer’s account from the date on which the Goods or Services are dispatched, notwithstanding that the title to the Goods remains vested in the Company as provided in Clause 4 (“Reservation of Title”) below.

(d) Payment for all Goods or Services together with VAT at the appropriate rate shall be made by the Customer to the Company no later than 28 days from the date of invoice unless otherwise agreed in writing by an authorised person. The Company reserves the right to charge interest on any outstanding balances. The Customer shall pay interest on any outstanding balances due in respect of Goods or Services supplied by the Company at a rate of EURIBOR (3 months) plus 7% or at such rates as may be fixed and published by the Company from time to time. Such interest shall be calculated monthly from the date on which the outstanding balance is accrued due until the date on which payment in full is received by the Company and shall be added to the principal sums outstanding from time to time. The Customer may apply to the Company’s head-office or to any of its branches or depots for details of the rates of interest currently chargeable on overdue accounts. The Company reserves the right at any time acting reasonably to revoke or vary any credit extended to the Customer including the credit period referred to above.

(e) The Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any amount in whole or in part.

(f) In the event of the Customer being, or in the reasonable opinion of the Company likely to be, declared bankrupt, unable to pay its debts as they fall due, or having a Receiver or an Examiner appointed or a Petition presented or resolution passed for its winding up or any analogous event occurs under applicable law, all sums unpaid by the Customer for Goods or Services supplied by the Company shall become immediately due and payable, notwithstanding that credit terms otherwise agreed shall

not have expired and/or the Company reserves the right to rescind the agreement for sale and refuse to supply the Goods or Services.

(g) In the event that the Customers insured credit limit as notified by the Company’s credit insurers is withdrawn or reduced the Company reserves the right to rescind the agreement for sale and refuse to supply the Goods or Services.

4. RESERVATION OF TITLE

(a) The property and title in all Goods supplied by the Company to the Customer shall notwithstanding delivery and passing of risk remain in the Company until the entire of the purchase price and all other sums due by the Customer to the Company in respect of the Goods have been paid in full.

(b) If any amount owing by the Customer to the Company is due and unpaid the Company may without prejudice to any of its other rights or remedies repossess and resell any or all of the Goods to which such amounts relate and for that purpose the Customer hereby authorises the Company its servants or agents to enter upon its premises at all reasonable times and without notice to the Customer.

(c) For so long as the title and property in Goods remains in the Company the Customer shall hold such Goods as bailee for the Company and store the Goods safely and suitably and clearly show them to be the property of the Company and identifiable as such.

(d) Notwithstanding the foregoing, while the title and property in the Goods remains in the Company and provided no notice in writing to the contrary has been served by the Company on the Customer, the Customer may deal with the Goods in the ordinary course of business including selling or otherwise disposing of same provided that:

(i) the Customer shall not be entitled to pledge or create any lien, charge or other encumbrance whatsoever on the Goods; and

(ii) Unless otherwise agreed in writing the Customer shall not be entitled to sell or otherwise dispose of the Goods at a price less than the price at which the Customer agreed to purchase the Goods from the Company; and

(iii) if the Customer shall sell or otherwise dispose of the Goods or goods incorporating the Goods, the Customer shall hold so much of the monies received for the sale or disposal as does not exceed the amount due and unpaid by the Customer to the Company in respect of such Goods on trust for the Company and undertakes to place any such monies so held on trust in a separate bank account and upon request shall provide details of such monies and such account to the Company.

(e) In the event of the Customer mixing Goods the title and property in which remain with the Company with other goods, then provided the Goods supplied by the Company remain in an identifiable and separate constituent of such mixed goods the title and property in the Goods supplied by the Company shall notwithstanding such mixing remain in the Company with the consequent obligations on the Customer under this clause 4 in relation to the portion of any proceeds of sale of the mixed goods referable to the identifiable and separate constituent Goods supplied by the Company the title and property in which remains with the Company.

(f) The Company may without prejudice to the foregoing and as part of the consideration for the sale of the Goods require the Customer to assign any claim which the Customer may have against any third party who may have purchased the Goods whether in respect of the proceeds of sale or otherwise.

(g) Without limiting any other right or remedy the Company may have, until the entire of the purchase price and all other sums due by the Customer to the Company in respect of the Goods have been paid in full the Company 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 or of any premises where the Goods are stored in order to recover possession of the Goods.

(h) The provisions of this clause shall not entitle the Customer either to refuse or delay payment.

5. SERVICES

(a) The Company shall use all reasonable endeavours to meet any specified performance dates for the Services but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

(b) The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature of the Service.

(c) The Customer shall co-operate with the Company in all matters relating to the Service and will where necessary, obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to commence.

6. QUALITY, WARRANTY AND LIMITATIONS

(a) Unless otherwise agreed in writing, the Company warrants that all Delivered Goods supplied by it hereunder are at the date of Delivery in conformance with the Goods specification. The Company’s sole liability to the Customer shall at its sole discretion be limited to either replacing any Goods or refunding the contract price which shall within the period specified below, be returned to the Company or its duly authorised representative and provided it is clearly established that such Goods were in fact not in conformance with the Goods specification at the time of Delivery. The warranty period shall be calculated from the date when the Goods are Delivered to the Customer (or its agent) and shall be for a period up to the specified “Best Before Date” or the specified “Expiry Date” unless otherwise specified and agreed in writing with the Customer (collectively the “Specified Date”). In the absence of a Specified Date the warranty period shall be six months from the date of Delivery.

(b) Subject as hereinafter provided, the Company warrants that all Services supplied by it are provided with reasonable skill and care provided however that its sole liability to the Customer shall, at the Company’s sole election, be limited to either, re-providing the Services or re-funding if applicable part or all of the net price paid by the Customer for the Services provided it is clearly established that such Services were in fact not provided with reasonable skill and care by the Company to the Customer. The warranty period shall be calculated from the date when the provision of the Services to the Customer were completed and shall be for a period of three calendar months thereafter.

(c) The Company will endeavour to assist the Customer in obtaining from its supplier of any Goods or Services supplied to it from time to time such warranty as the supplier has given or may be prepared to give to the Company in respect of such Goods or Services and such assistance is given and is accepted by the Customer in lieu of and expressly excludes any other condition, warranty or guarantee as to the quality or fitness for any purpose or any representation or warranty as to performance or other attributes of such Goods or Services supplied by a third party to the Company. The Company shall not be liable to the Customer for the observance of the terms of such warranty.

(d) Except as set out in this Clause 6 all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law save and to such extent as it may be unlawful to exclude same.

(e) In relation to any claim the parties shall acting reasonably agree responsibility for and consult with the other party in advance in respect of any expenses of transportation, labour or other costs which may be involved and each party shall use its reasonable endeavours to mitigate such costs.

(f) The foregoing warranty does not extend to any Goods which have been accidentally damaged or which have been repaired, altered, neglected or used in any way by the Customer so as to affect adversely their utility or reliability or quality or uses under normal conditions.

(g) In the event of there being any dispute as to whether or not the Goods are in conformance with Goods specification at the time of Delivery or as to the cause of any such non-conformance the Company shall be entitled to inspect the Goods and apply or have applied such tests to the Goods as may be necessary but the Company shall not be responsible for any loss occurring or for any damage to the Goods or to any other goods occasioned by or in the course of such inspection or tests.

(h) Notwithstanding that a sample of the Goods has been exhibited to and inspected by the Customer it is agreed that such sample was so exhibited and inspected solely to enable the Customer to judge for himself the quality, condition or fitness of the Goods and not so as to constitute a sale by sample under this contract. The Customer shall take the Goods at his own risk as to their corresponding with the said sample. The description of the Goods given by the Company has been given by way of identification only and such description shall not constitute or be deemed to constitute in this contract a sale by description.

7. CLAIMS

(a) The Customer shall inspect the Goods immediately upon Delivery to the Customer or its nominated agent and shall inspect the Services immediately upon completion of the Services. As a condition precedent to recovery under the warranty above for non-conformance of the Goods with the specification or total or partial loss of or shortages in or damage to any Goods supplied or failure to provide the Services with reasonable skill and care (collectively the “Defect” ) every claim for same must be made in writing by the Customer at the earliest possible date and in any event within seven calendar days after the receipt of such Goods by or on behalf of the Customer or the completion of the Services and every claim shall specify the date and place of purchase, the date on which the Goods were dispatched, the date on which the Goods or Services were delivered, the circumstances in which the alleged Defect became apparent and such further details as may be relevant to the claim.

(b) Where a defect is a latent defect not apparent on inspection then every claim for same must be made in writing by the Customer at the earliest possible date and in any event within seven calendar days after the defect became apparent or should reasonably have become apparent whichever is the earlier.

8. LIMITATION OF LIABILITY

(a) The Company shall have no liability to the Customer for indirect or consequential loss, damage, injury or expenses of any nature or description, loss of profit, goodwill, business opportunity or anticipated savings howsoever arising.

(b) The Company’s liability (if any) whether in contract, tort, or otherwise in respect of any defect in the Goods or Services, or for any breach of Contract or of any duty owed to the Customer in connection herewith or failure to deliver the Goods or Services (in full or in part), shall be further limited to the contract price of the Goods or Services in question.

(c) Save and to the extent expressly provided herein, the Company shall have no further liability whatsoever for loss, damage or expense incurred by the Customer resulting from defects in materials and/or workmanship in the Goods or Services supplied howsoever arising.

9. FORCE MAJEURE

The Company shall not be liable for any loss, damage injury or expense whatsoever incurred by the Customer arising or resulting from a Force Majeure event including but not limited to acts of God, Government orders, strikes, lockouts or other industrial action, inability to secure labour, materials or supplies at commercially justifiable rates, accidents, plant or vehicle breakdown, war, civil commotion or any other circumstances (whether of the foregoing class or not) beyond the control of the Company and every contract between the Company and the Customer is subject to suspension, variation or cancellation by the Company as may be necessary due to a force majeure event.

10. INDEMNITY

The Customer shall at all times keep the Company indemnified against any claims for loss, damage or expense arising out of or connected with the Goods or Services and attributable either directly or indirectly to the Customer.

11. DATA PROTECTION

a. The Company may use data relating to the Customer which is collected under these Conditions of Trading or otherwise for the purposes of performing its obligations under a contract and for administration, risk assessment, marketing and credit checking purposes. The Company may disclose Customer data to its agents, dealers and service providers for these purposes.

b. The Company may also share Customer data with companies within the Company’s group.

c. Where Goods or Services are sold to the Customer on a credit account in accordance with condition 3 of these Conditions of Trading, the Company may sell, assign or transfer its interest in any debt owed by the Customer to the Company to any third party. The Company may carry out searches in the files of credit reference agencies that will record the search and may also disclose Customer data to any assignee or transferee and their professional advisers.

d. The Customer has the right, subject to certain exemptions, to obtain a copy of any personal data held by the Company and to correct any inaccuracies in such personal data

12. INTELLECTUAL PROPERTY

The Customer will not infringe nor permit the infringement of the Company’s Intellectual Property Rights and will strictly adhere to the Company’s brand guidelines.

13. GENERAL

(a) Paragraph headings in these Conditions of Sale are for ease of reference only and shall have no legal effect whatsoever.

(b) Each of the sub-paragraphs of this clause shall be regarded as creating separate terms and obligations under the contract and in the event that any one shall be void or unenforceable such avoidance or unenforceability shall not affect the validity of the remaining sub-paragraphs hereof.

(c) Any reference in these conditions of sale to a statute or a provision of a statute shall be construed as a reference to the statute or provision as amended, re-enacted or extended at the relevant time.

14. GOVERNING LAWS

These General Conditions of Sale and all other express terms of every agreement between the Company and the Customer concerning the supply of Goods or Services shall be governed by and construed in all respects in accordance with the laws of the Republic of Ireland and the Customer agrees to submit to the non- exclusive jurisdiction of the Irish Courts in relation to any matter arising hereunder in dispute.