Terms of Service
1.General
1.1
In these Conditions of Sale “us”, “we” and “our” means Banner.ie Limited and “you” and “your” means the person, firm or company with whom we contract.
1.2
These Conditions of Sale apply to and govern any contract between ourselves to the exclusion of any other conditions contained on, or in, any letter, order form, receipt or similar document emanating from you and where references are made to INCOTERMS these Conditions of Sale shall prevail. No variation of these Conditions of Sale shall be effective unless expressly agreed by us in writing.
1.3
(a) All quotations are for information only and are not to be considered as an offer by us. An order by you shall not constitute a contract between ourselves unless and until it has been accepted by us.
(b) Acceptance by us of any order shall be on the basis that goods will be invoiced at the prices contained in our price list current at the date of despatch unless otherwise stated in writing by us.
1.4
(a) Except where otherwise stated in the contract or in our current price list all prices include the cost of packaging and delivery within Ireland (but not installation). We reserve the right to make additional charges if you require a method of packaging or delivery different to that normally employed by us or delivery is to be made outside mainland Ireland.
(b) You shall, in addition to the net purchase price, pay to us the amount of any Value Added Tax or other sales tax at the rate in force at the time the goods are invoiced and all relevant foreign currency and export and import duties and other costs incurred for deliveries outside Ireland.
2.Payment
2.1
(a) All goods will be invoiced at the time of, or soon after, despatch. Payment for the goods must be received by us in euros unless altered by terms of separate supply agreement (without set off or counterclaim) not later than the last day of the month following the date of the invoice. Time of payment is of the essence in every contract. In addition to any other rights we may have, in the event of late payment you shall become liable to pay us interest on the amount due at 3% above the base rate of Allied Irish Bank plc calculated on a daily basis from the date of due payment until the date of actual payment.
(b) In the event that you postpone delivery, or request that we suspend the manufacture of the goods, or fail to give us sufficient information to enable us to process any order, you shall pay any additional costs and expenses thereby incurred by us.
(c) If you pay any amount to us without apportioning it between specific debts or liabilities, it shall be apportioned as we think fit. We may attribute a partial payment to one or more specific items, rather than to all the items which are the subject of a particular contract.
(d) Failure to pay within the period specified shall entitle the Company upon the expiration of 14 days notice in writing to suspend further performance of the Contract pending payment and in addition the Company shall be entitled without liability wholly or partially to cancel the Contract or any other contract between the Company and the Customer without prejudice to any other remedy available to the Company;
Illustration & Dimensions
3.1
(a) All descriptions, drawings, samples and other information contained in brochures, catalogues, price lists, trade literature and advertising material produced by us are approximate only, intended to indicate only the general character of the goods and do not form part of any contract between us and you.
(b) The dimensions of goods are subject to manufacturing tolerances customary within the trade. Dimensions contained in quotations, acknowledgements of orders, or catalogues, price lists, advertising matter, and other trade literature are therefore approximate only.
(c) All know-how, samples, models, designs, specifications, drawings, descriptions and similar items which we prepare relating to the goods or their development (and the copyright therein) shall remain our property, they shall be returned by you on demand and shall be treated by you as confidential. They are prepared solely for our use or illustrative purposes and must not be copied, reproduced or disclosed to any third party without our prior written consent and we shall not accept any liability whatsoever for any loss, injury or death caused by any reliance upon them by you or any third party.
Substituted Goods
4.1 We reserve the right to substitute goods which are similar to the goods ordered by you provided that such substituted goods are no less suitable for the purpose for which they are generally used than goods ordered by you.
Cancellation
5.1 You shall not cancel the contract without our consent which if given shall be deemed to be on the express condition that you shall indemnify us against all loss, damage, claims, expenses and actions arising out of such cancellation unless otherwise agreed in writing.
Delivery
6.1
(a) Delivery shall be to such place within Ireland as specified by you in your delivery instructions contained in your order or, in the absence of such instructions, at the Customer’s premises.
(b) We reserve the right to make additional charges for deliveries made on your behalf to premises other than those belonging to you and for packaging and delivery methods different from those normally employed by us.
(c) You shall be responsible for unloading the goods at the point of delivery and for loading and removal if the goods are collected by you or your carrier from our premises.
6.2
While we will use all reasonable endeavours to comply with any delivery date, we cannot be held responsible for any loss or damage whatsoever caused by late delivery and you shall not be entitled to reject goods for late delivery. The Company shall be entitled to make delivery of the Goods by instalments and to invoice the Customer for each instalment dispatched.
6.3
If the contract provides for delivery by instalments late delivery of one instalment shall not entitle you to reject any other instalment under the same contract.
6.4
If you fail to take delivery at the time required by the contract we shall be entitled without prejudice to any other rights we may have to treat the contract as at an end and to resell the goods or to invoice the goods in which event payment in full shall become due in accordance with the provisions of condition 5. In either case we shall be entitled to charge you at rates giving an economic return for the handling and storage of the goods from the date of the invoice to the date of eventual delivery to you or of disposal elsewhere.
6.5
Where the Goods are not manufactured or supplied directly by the Company and are delivered direct to the Customer by, or collected by the Customer from the manufacturer or supplier, the Company shall not be liable for any damage to or loss of the Goods whatsoever or whenever occurring.
6.6
Where Goods are not transported using the Company’s own transport or sub-contractors the Company shall not have any liability whatsoever for or in connection with any damage to or loss of the Goods in transit to the contracted place of delivery.
6.7
Without prejudice to the Customer’s rights under Condition 12, the Customer shall be deemed to have accepted the Goods as being in conformity with the Contract and shall be bound to pay for them, unless written notice of rejection thereof is received by the Company within 7 days of delivery. Save in the circumstances referred to in Condition 13 Goods accepted by the Customer cannot subsequently be returned and any claim which the Customer might otherwise have shall be deemed to have been waived.
7.Returnable Containers
7.1
Returnable containers (stillages) in which goods are delivered are our property and will be charged to you unless they are returned to us no later than one month after the date of delivery, undamaged and in good condition.
7.2
If after notice of rejection has been given, the Customers deals with the Goods as owner thereof or if any conduct of the Customer is inconsistent with such rejection or with the ownership of the Goods by the Company, the Customer shall be deemed to have accepted the Goods and be bound to pay for them
7.3
Any goods accepted for return by us must be confirmed in writing and will be subject to a minimum restocking charge of 15% plus an order for goods to the value of twice the value of the goods for return or written agreement. Only full packs and product fit for resale will be accepted for credit and the Company reserves the right to reject the credit claim and scrap any material that does not meet this criteria without authority of the returning Customer.
8.Risk
8.1 The risk in the goods contracted to be sold by us shall pass to you when the goods are delivered to you or when the goods are invoiced in accordance with the provisions of condition 13. If the contract is stated to be F.O.B. or C.I.F, such risk shall then pass to you when the goods are delivered onto the ship or aircraft.
8.2
(a) Notwithstanding any passing of risk to you, we retain ownership of the goods held by you and such property rights shall not pass to you and you shall keep any goods delivered to you as bailee for and on behalf of us until we have received full payment of the price of all goods (whether or not the goods are delivered in instalments and some have been paid for by you) and all other sums due at any time whatsoever from you to us. It is agreed that you will sell all goods purchased by you from us on an assumed first in first out basis.
(b) Until ownership of the goods has passed to you, you:
(i) shall insure the delivered goods against any loss or damage with an insurance office of repute and shall on demand produce evidence of such insurance. If you fail to insure we may do so instead on your behalf and you shall reimburse us on demand. Until the full price has been paid, you shall hold on trust for us the policy and proceeds of insurance, shall on request execute a formal assignment in favour of us over the same or arrange for our interest to be noted on the face of the policy or for us to be named as an insured person and, if we retain any interest in the insurance, for the policy monies to be paid direct to us, failing which into a separate bank account on trust for us;
(ii) shall store the delivered goods separately or in some other way to ensure that they are readily identifiable as our property;
(iii) irrevocably authorise representatives of ours at any time and from time to time (whether or not payment is due) to repossess the goods and for such purpose to enter any premises occupied by you or where the goods are or are thought to be and to sever the goods from anything to which they are attached without being responsible for any damage caused; and
(iv) Shall keep the delivered goods free from any charge, lien or other encumbrance.
(c) If while under our ownership, the goods or any of them are processed or incorporated into other goods (“the New Goods”) then, provided the goods remain as identifiable and removable part of the New Goods, the provisions of conditions (a) and (b) shall apply.
(d) We (acting on our own account not as your agent) may sell or agree to sell any of the goods or the New Goods in your possession on such terms as we may in our sole discretion consider appropriate.
(e) We shall be entitled to a general lien over all goods and materials of yours which are in our possession or control from time to time for any sums due at any time whatsoever to us.
(f) Nothing in this condition 8 shall affect any other right or remedy of ours.
(g) The provisions of this condition 8 shall survive termination of the contract for any reason.
(h) Nothing in this condition 8 shall confer any right upon you to return the goods or to refuse or delay payment therefore.
- Limitation & Liability
9.1 (a) Goods may be delivered in cartons, bundles, returnable containers, loose or in other packaging. In any case where it is established to our satisfaction that the goods have been damaged or lost (whether wholly or in part) in transit we will at our own cost, repair or replace same provided that:
(i) in the case of total loss we are notified in writing within 7 days of receipt of invoice;
(ii) in the case of partial loss, or damage, you have returned to our representative (or where the goods have been delivered by a carrier his representative) our despatch note duly signed by your representative and indicating thereon as shortage of or damage to the goods, cartons, bundles, returnable containers, loose goods or other such packages as shall make up the delivery and full particulars are notified directly to us in writing within 7 days of delivery;
(iii) in the case of damage the goods and their packaging are retained by you for inspection by our representative.
We shall not be liable for any loss or damage in transit, except as above.
(b) If we (acting reasonably) are satisfied that any goods supplied by us are defective as to material or workmanship not caused wholly or partly while at your risk by wilful default, accident, improper storage or use or failure to follow instructions and providing that the goods have not been dismantled, altered or repair attempted, our liability shall be limited to make good the defect without charge by repair or replacement or (at our discretion) waiver or refund of all or part of the price provided that the goods are returned to our premises carriage paid within a reasonable time after you become aware of the defect and in any event within 12 months from the date of installation or 18 months from the date of despatch, whichever is the earlier. Where we find returned goods are not defective we reserve the right to charge you a handling charge.
(c) Our obligations and liabilities to you arising out of or in connection with the goods shall be limited to those expressly set out in these conditions and those which are implied or imposed by law to the extent that they cannot be limited, restricted or excluded by law. You hereby acknowledge that this is reasonable and reflected in the price and shall accept the risk and/or insure accordingly.
(d) Subject to the foregoing, no collateral contract and no representation, warranty, condition, stipulation, liability or obligation whatsoever (including without limitation, whether arising (i) in contract tort including negligence or otherwise; or (ii) expressly, impliedly, at common law, by statue, custom, usage or course of dealing or otherwise; or (iii) in relation to loss, injury or damage of any nature whatsoever whether direct or consequential) is given, made or undertaken by us or our employees or agents in relation to the goods (including, without limitation, whether in relation to their description, correspondence with sample, state, condition, quality (satisfactory or otherwise), performance, safety, merchantability, fitness for any particular purpose or other characteristic on delivery or at any other time), all of which are hereby excluded and extinguished.
9.2 No warranty or representation given by us or on our behalf including any advice as to the installation quantities use or performance of goods supplied by us shall be binding upon us unless specifically stated in writing by us to be incorporated in the contract. This extends to information supplied by us on our drawings.
- Your Indemnity
10.1 You shall indemnify and hold harmless us and all of our group members and our respective officers, employees and agents against all liabilities, losses, damages, costs, charges, expenses (including without limitation legal fees and expenses on a full indemnity basis) actions, proceedings claims and demands incurred by or brought against any of them and arising directly or indirectly out of or in connection with any breach of any of your obligations under these conditions or any contract between us.
11.Consequential Loss
11.1 Without prejudice to the generality of the foregoing provisions we shall not in any event be liable to you for any indirect or consequential loss, damage or expense.
12.Insolvency & Breach of Contract
12.1 (a) We shall have the option (without prejudice to any of our other rights against you) by notice in writing to you to rescind the contract or to suspend delivery in the following events:
(i) should any sum owing by you to us be overdue;
(ii) should you be in breach of any term of the contract with us;
(iii) should you enter into any composition or arrangement with, or for the benefit of, your creditors or have a receiving order in bankruptcy made against you or (if a body corporate) should you go into liquidation either voluntary or compulsory or under supervision or have a receiver appointed over all or any part of your assets, or you become unable to pay your debts within the meaning of the Insolvency Act (as maybe amended re-enacted or replaced from time to time), or the equivalent circumstances occur in any other jurisdiction, or
(iv) should you come under the control directly or indirectly of any person who does not control you at the date of the contract:
(b) In the event of any of the above, we may (at our discretion and without prejudice to our other rights) by written notice to you:
(i) declare (whereupon it shall forthwith become) immediately due and payable any indebtedness of yours to us on any account whatsoever; and
(ii) set off (to the extent it has not done so or is entitled to do so already) any indebtedness of ours to you against any indebtedness of yours to us, in each case or any account whatsoever.
- Health and Safety & Instructions
13.1 (a) We hereby give notice to you that we have available upon request information and product literature concerning the currently known conditions necessary to ensure that the goods supplied will be safe and without risks to health when properly used, and you acknowledge it is for you to ask for further information if you so wish and you shall be deemed to have been afforded by us reasonable opportunity for the testing and examination of goods or materials in respect of their safety and risk to health prior to delivery to you, and shall have been afforded by us adequate information about the goods and materials in respect of the use for which they are designed, and have been tested, and of any condition necessary to ensure that when put to that use they will be safe and without risk to health, whether or not the said information has been requested by you.
- b) You shall comply, and ensure that your employees and agents comply, strictly with all instructions, warnings, data sheets and other material supplied by us or in connection with the goods and shall when supplying the goods ensure that they are accompanied by the same.
- Intellectual Property
14.1 You shall have no rights to any intellectual property owned or licensed by us other than (if applicable) to resell the goods under the trade or service mark applied by us and you shall not, without our prior written consent, allow any trade or service mark applied by us or any instruction or warning applied to the goods to be obliterated or obscured.
15.Assignment
15.1 You may not assign, mortgage, charge, sub‑let or otherwise dispose of any contract or any rights there under in whole or in part.
- Force Majeure
16.1 In the event of war, invasion, act of foreign enemy hostilities (whether war has been declared or not), civil war, rebellion, revolution, insurrection or military or usurped power we shall be relieved of liability incurred under the contract wherever and to the extent to which fulfilment of such obligation is prevented, frustrated, or impeded as a consequence of any such event or by any statues, rules, regulations, orders, or requisitions issued by any Government Department, Council, or other duly constituted authority, or from strikes, lock‑outs, industrial or trade dispute, breakdown of plant or any other causes (whether or not of a like nature) beyond our control.
- Waiver
17.1 Forbearance or indulgence shown or granted whether in respect of these Conditions of Sale or otherwise, shall not affect or prejudice our rights against you or be taken as a waiver of any of these Conditions of Sale.
18.Governing Law
18.1 Any contract incorporating these Conditions of Sale shall be governed by and construed in accordance with the laws of Ireland and both parties hereby agree to submit to the jurisdiction of the Irish Courts.
19.Head notes
19.1 The head notes to these Conditions have been inserted for convenience and shall not affect their construction.