1.1 In these Conditions:
"Conditions" means the standard terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Purchaser and the Supplier.
"Contract" means the contract for the Sale and Purchase of Materials.
"Delivery Address" means the place or places specified as such on the Order.
"Delivery Date" means the date or dates stated on the Order as the date or dates upon which Materials are to be delivered, or where not so specified, the date or dates agreed in writing by the parties as the date or dates upon which the Materials are to be delivered in accordance with this Agreement.
"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any terms or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in this Agreement, but if there is any conflict between the provisions of Incoterm and this Agreement, the former shall prevail.
"Materials" mean the Materials (including any instalment of the Materials or any part of it) described on the Order.
"Order" means the Purchaser's purchase order to which these Conditions are annexed.
"Price" means the price of Materials as set out in Condition 4.
"Purchaser" means Electricity Supply Board a Statutory Corporation having its principal place of business at 27 Lower Fitzwilliam Street, Dublin, Ireland (which expression shall include any assigns and legal successors in title under any restructuring of ESB by the Government of the Republic of Ireland.)
"Specifications" means the plans, drawings, specifications, data or other information relating to the Materials set out in Schedule (4) as amended from time to time, or if not so specified or agreed, shall be as specified by the Supplier as standard for the relevant Materials.
"Supplier" means the person, firm or company to whom the Order is addressed.
"Subsidiary company" has the same meaning as is attributed to such expression by Section 155 of the Companies Act 1963.
1.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these conditions are for convenience only and shall not affect their interpretation.
2.0 BASIS OF PURCHASE
2.1 The Order constitutes an offer by the Purchaser to purchase the Materials subject to these Conditions.
2.2 Subject to the terms of any Supply Consignment Agreement between the Supplier and the Purchaser in force at the date hereof (which terms shall prevail over these Conditions) these Conditions shall apply to the Contract to the exclusion of any other terms and conditions, expressed or implied by trade, custom, practice or course of dealing.
2.3 Acceptance by the Supplier of any Order shall result in a Contract for the sale of the Materials which are the subject of such Order.
2.4 Subject to variation or cancellation permitted by Conditions 6.6 and 6.7, no variation to the Contract shall be binding unless agreed in writing between the authorised representatives of both parties.
3.1 The quantity, quality and description of the Materials shall, subject as provided in these Conditions, be as specified in the Specifications.
3.2 Any Specifications supplied by the Purchaser to the Supplier, or specifically produced by the Supplier for the Purchaser, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specifications, shall as between the Supplier and the Purchaser be the exclusive property of the Purchaser. The Supplier shall not disclose to any third party or use any such Specifications except to the extent that it is or becomes public knowledge through no fault of the Supplier, or as required for the purpose of the Contract.
3.3 The Supplier shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of Materials.
4.0 PRICE OF MATERIALS
4.1 Unless otherwise clearly agreed in writing by both parties the Price to be charged against this Order must be in accordance with Incoterms.
4.2 The Price of Materials shall be as stated on the Order and subject to no variation except with the prior written consent of the Purchaser.
4.3 Unless otherwise stated, the Price shall be:-
4.3.1 exclusive of any applicable value added tax (which shall be payable by the Purchaser subject to receipt of a VAT invoice);
4.3.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of Equipment to the Delivery Address and any duties, or levies other than value added tax; and
4.3.3 payable in the currency stated on the Order.
5.0 TERMS OF PAYMENT
5.1 Subject as hereinafter provided, the Supplier shall be entitled to invoice the Purchaser on or at any time after delivery of the Materials. All invoices must be sent to the address specified on the Order.
5.2 A separate invoice must be rendered for each individual delivery of Materials PROVIDED THAT in the event that the Supplier makes a part delivery of Materials less than that requested by the Purchaser the Supplier shall not be entitled to invoice the Purchaser for such part delivery if:-
5.2.1 the total Price of the Order is less than €500; or
5.2.2 the Price of such part delivery (when aggregated with any other part delivery for which the Price remains unpaid) is less than 50% of the total Price of the Order.
5.3 Each invoice shall quote the number of the relevant Purchaser's Order, the relevant Purchaser's Product Codes (as stated on the Order) together with the applicable Price for each code, the Delivery Date and the Delivery Address. Value Added Tax and the cost of shipping (where not included in the Price) shall be itemised separately on each invoice. Where appropriate, invoices must show both the Supplier's VAT Registration number and the Purchaser's VAT registration number IE 8F52100V.
5.4 Unless otherwise stated in the Order, the Purchaser shall pay the Price on a net monthly account basis i.e., payment is made on the last business day of the month following the month of the invoice date by direct transfer from Purchaser's bank account to Supplier's bank account as advised to the Purchaser provided all monies specified on the Supplier's invoices are properly due in accordance with the Contract and the invoices are correctly addressed and quote the relevant Order Number.
5.5 The Purchaser shall be entitled to set off against the Price any sums owed to the Purchaser by the Supplier.
5.6 Where no price is stipulated on the Order, the Order must not be filled at higher prices than those last charged or quoted by the Supplier to the Purchaser without the prior consent of the Purchaser in writing.
6.0 DELIVERY AND ACCEPTANCE
6.1 The date of delivery, stated in the Order is binding upon the Supplier, unless otherwise agreed to in writing by the Purchaser.
6.2 The Materials shall be delivered to the Delivery Address by the Supplier on or by the relevant Delivery Date during the Purchaser's usual business hours.
6.3 No consignment of Materials shall be deemed to have been delivered unless a delivery note has been signed by a duly authorised representative of the Purchaser.
6.4 Time of delivery of Materials is of the essence of the Contract.
6.5 The Supplier shall supply the Purchaser in good time with any instructions or other information required to enable the Purchaser to accept delivery of the Materials.
6.6 If a Delivery Date cannot be met by the Supplier, the Supplier shall promptly notify the Purchaser of the earliest possible date for delivery. Notwithstanding such notice, and unless a substitute delivery date for the Materials has been expressly agreed by the Purchaser in writing, the Supplier's failure to effect delivery of the Materials on the Delivery Date shall entitle the Purchaser, without prejudice to any other remedy it may have, to:-
6.6.1 deduct from the Price or (if the Purchaser has paid the Price) to claim from the Supplier by way of liquidated damages for delay 2 per cent of the Price for every week's or part week's delay, up to a maximum of 15 per cent of the Price; and/or
6.6.2 cancel the Contract, whereupon the Supplier shall refund any part of the Price which has been paid in respect of such Materials and the Purchaser shall, at the Supplier's risk and expense, return any Materials already supplied under the Contract; and/or
6.6.3 (where delivery is by instalments) cancel that instalment and (at the Purchaser's option) purchase substitute Materials elsewhere;
And in each case in sub-conditions 6.6.1 and 6.6.3 inclusive recover from the Supplier any direct, indirect, and/or consequential losses, costs and liabilities whatsoever incurred by the Purchaser (including, in the case of sub-conditions 6.6.2 and 6.6.3, without limitation, the costs of any replacement Materials).
6.70 Partial delivery of an Order shall not be made without the prior written consent of the Purchaser. In case of partial delivery, all packages, etc. Advice Notes, Packing Notes and Invoices must be clearly marked "Partial Delivery".
6.8 The Purchaser accepts no liability in regard to the satisfactory return to the Supplier of any consignment or part of a consignment delivered in error under any Order.
6.9 Notwithstanding delivery, the Purchaser shall not be deemed to have accepted any Materials until they have been:-
6.9.1 inspected and checked against the relevant packing note; and
6.9.2 have passed any acceptance tests which the Purchaser deems necessary, such tests to be carried out by the Purchaser within thirty days from the date of delivery.
6.10 Without prejudice to any other remedy that the Purchaser may have, if any Materials are not supplied in accordance with the Order, then the Purchaser shall be entitled on giving notice to the Supplier within thirty days from the date of delivery of the relevant Materials, and without liability to the Supplier, to:-
6.10.1 require the Supplier, at the Supplier's expense, to comply with the Order in all respects within fourteen days or such other period as is specified by the Purchaser; and/or
6.10.2 vary the Contract, in which case the Supplier shall comply with the Order as so varied; or
6.10.3 treat the Contract as discharged (in full or in part) by the Supplier's breach and require repayment of any part of the Price which has been paid in respect of the Materials and the Purchaser shall, at the Supplier's risk and expense, return any Materials already supplied under the Contract;
And in each case in clauses 6.10.1 and 6.10.3 recover from the Supplier any direct, indirect and/or consequential losses, costs and liabilities whatsoever incurred by the Purchaser, (including without limitation, the costs of any replacement Materials).
7.0 PACKING, MARKING AND DOCUMENTATION
7.1 The Materials shall be marked in accordance with the Purchaser's instructions (if any) and any applicable regulations or requirements of the carrier and/or legal authority, and properly packed and secured so as to reach the Delivery Address in an undamaged condition in the ordinary course.
7.2 A packing note must accompany each delivery or consignment of the Materials and must be displayed prominently.
7.3 The Supplier shall be responsible for obtaining any import licences, permits or other consents necessary for the importation and delivery of the Materials.
7.4 The Supplier shall supply without charge such reasonable quantity of operation and maintenance manuals in English relating to the Materials which the Purchaser may require and/or which are necessary for the proper installation, operation and maintenance of the Materials.
7.5 The Supplier agrees on request to supply the Purchaser with any necessary declarations, certificates and other documents stating the origin of the Materials and whether, and if so how, they qualify for EU or EFTA preferences.
7.6 The Regulations of the Department of Agriculture, Ireland, governing the control of Foot and Mouth disease prohibit the use of hay, straw or peat moss litter as packing for goods. Hay includes grass moss, rushes, ferns, heathers, alfafa meal, etc. Where prohibited packing is used the goods must be returned to sender for repackaging, all costs for the account of Supplier.
7.7 The Supplier shall use packing of sufficient strength, etc., to protect the goods against all transport risks.
7.8 Use of Shipping containers: Goods must be packed so that they can be unloaded by Fork Lift Truck working from ground level; Cable Drums must be stacked upright; Steelwork must be in open sided containers; Multiplicity of small items must be on all pallets; Containers must not be too tightly packed.
7.9 The Purchaser will not undertake to return any packages, cases, or other packing materials, and no payment will be made by the Purchaser in respect thereof. Exceptions to this clause must be clearly stated in writing and agreed to in writing by the Purchaser.
7.10 All packages, cases, pallets and other containers must be clearly and individually marked with the Purchaser's name, Order Number and Product Codes. Packing notes must be always included in each box, case, etc., stating the Order Number, quantities and description of items contained in each box, the Purchaser's Product Codes (as stated on the Order), the Delivery Date, and the Delivery Address.
8.0 SHIPPING DOCUMENTS
8.1 Copies of the commercial invoice and packing lists must always accompany the goods for shipment.
8.2 Copies of the commercial invoice and packing lists must also be forwarded to the Purchasing Manager before or at the time of shipment.
8.3 Bills of Lading must be forwarded directly to the Purchasing Manager and one must be forwarded by ship's bag. Bills of Lading must never be sent through a bank.
8.4 Where applicable, the correct customs documentation must be provided by the supplier for example, but not limited to T-documents, AAD's, EUR forms, Certificates of Origins.
9.0 RISK AND TITLE
9.1 Risk of damage to or loss of the Materials and title in the Materials shall pass to the Purchaser upon delivery to the Purchaser in accordance with the Contract, unless payment is made prior to delivery, in which event, title shall pass to the Purchaser once payment has been made.
9.2 Where title in the Materials has passed to the Purchaser prior to delivery pursuant to Condition 9.1, the Supplier shall keep such Materials separate from other Materials and shall clearly mark the Materials as the property of the Purchaser.
10.1 The Supplier warrants to the Purchaser and it is a condition of the Contract that the Materials:-
10.1.1 will be of merchantable quality and fit for any purpose held out by the Supplier or made known to the Supplier in writing at the time the Order is placed and for use by the Purchaser in the ordinary course of its business;
10.1.2 will be free from defects;
10.1.3 will correspond in all respects with the Specifications and/or any sample; and
10.1.4 will comply with all statutory requirements and regulations relating to the manufacture, packaging, packing, distribution, sale and purchase of the Materials.
10.2 In the event that any Materials do not comply with any of the warranties in Condition 10, and without prejudice to any other remedy that the Purchaser may have, the Purchaser shall be entitled at any time during the period of two years following the date of delivery and at its sole discretion to require the Supplier, at the Supplier's expense, to repair or replace within fourteen days or such other period as is specified by the Purchaser any such Materials and to reimburse the Purchaser with all costs incurred in recovering and returning such Materials.
10.3 If the Supplier fails to repair or replace any Materials within fourteen days (or such other period as is specified by the Purchaser) in accordance with Condition 10.2 the Purchaser shall have the right to purchase replacement Materials from another source and any money paid by the Purchaser to the Supplier in respect of the Materials together with any additional expenditure over and above the Price reasonably incurred by the Purchaser in obtaining replacement Materials shall be paid by the Supplier to the Purchaser.
10.4 The warranties and remedies provided for in this condition 10 and conditions 6.6, 6.10 and 11 shall be in addition to those implied by or available at law or in equity and shall continue in force notwithstanding acceptance by the Purchaser of all or part of the Materials in respect of which such warranties and remedies are available.
11.1 The Supplier shall indemnify and keep indemnified the Purchaser, its agents, employees, officers, subsidiaries, associated companies and assigns, in full against any liability whatsoever, including, without limitation, losses, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Purchaser (whether to its own customers or otherwise) indirectly or directly arising from, or consequential upon or in connection with:-
11.1.1 breach of any warranty given by the Supplier in relation to the Materials;
11.1.2 any claim that the Materials infringes, or its importation, use or resale, infringes the patent, copyright, design right, trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specifications supplied by the Purchaser;
11.1.3 any act or omission of the Supplier or its employees, agents or sub-contractors in performing its obligations under the Contract.
11.1.4 any liability under the Liability for Defective Products Act, 1991 in respect of the Material
11.1.5 any liability/penalty imposed under the Safety, Health and Welfare at Work Act, 1989 or any other relevant statutes.
11.2 The Supplier shall, at the request of the Purchaser, assign the benefit of all warranties, indemnities and other covenants received by the Supplier from any third party in connection with the Materials.
11.3 This clause shall survive 2 years following the termination of this Agreement.
The Supplier shall at all times insure and keep itself insured with a reputable insurance company against all insurable liability under the Contract in respect of the Materials, and without prejudice to the generality of the foregoing, against all the Supplier's liabilities under Condition 11. The Supplier shall provide all facilities, assistance and advice required by the Purchaser or the Purchaser's insurers for the purpose of contesting or dealing with any action, claim or matter arising out of the Supplier's performance of the Contract.
13.1 Without prejudice to any other rights or remedies to which it may be entitled, the Purchaser shall be entitled to terminate the Contract forthwith without liability to the Supplier by giving notice to the Supplier at any time if:-
13.1.1 the Supplier commits a material breach of any of the terms or conditions of the Contract and if such breach is capable of being remedied fails to remedy the breach within thirty days of notice given by the Purchaser requiring the Supplier to do so; or
13.1.2 there is a change in control of the Supplier; or
13.1.3 the Supplier convenes a meeting for the purpose of or proposes to enter into any arrangement or composition for the benefit of its creditors; or
13.1.4 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Supplier; or
13.1.5 the Supplier ceases, or threatens to cease, to carry on business or takes or suffers any similar analogous action under any other applicable law; or
13.1.6 the Supplier is unable to pay its debts within the meaning of Section 214 of the Companies Act, 1963 (as amended by Section 123 of the Companies Act, 1990) or analogous provision of law; or
13.1.7 any representation herein contained by the Supplier shall in the opinion of the Purchaser prove to be untrue or incorrect in any respect as of the date when made; or
13.1.8 an Order is made or an effective resolution is passed for the winding up of the Supplier's Company other than for the purpose of an amalgamation or reconstruction the terms of which have been agreed by the Purchaser; or
13.1.9 a petition is presented or an Order is made or a resolution passed or any analogous proceedings or action is taken for the appointment of an examiner, administrator, administrative receiver, trustee or any similar officer over the Supplier; or
13.1.10 the Purchaser reasonably believes that any of the events mentioned above is about to occur in relation to the Supplier and notifies the Supplier accordingly.
13.2 Termination of the Contract for whatever reason shall not relieve or discharge either party from any obligations which have accrued prior to such termination.
14.1 The Contract is personal to the Supplier and the Supplier shall not assign or transfer or purport to assign or transfer to any other person any of its rights or obligations under the Contract.
14.2 The Purchaser is entitled to assign and transfer all or part of its rights and obligations under the Contract.
15.1 Any notice or other communication whether required or permitted to be given by one party hereto to the other shall be in writing and shall be deemed to have been duly given if signed by or on behalf of a duly authorised officer of the party giving the notice and:-
15.1.1 if delivered, at the time of delivery to the addressee or its duly authorised agent;
15.1.2 if sent by pre-paid post, four days after posting if addressed to the party to whom such notice is to be given at the address set forth for such party in this Agreement (or such other address as is from time to time notified to the other party hereto);
15.1.3 if transmitted by facsimile, on receipt of an error free transmission report to such facsimile number or numbers from time to time notified to the other party.
15.20 All notices to the Purchaser under this Agreement shall be in writing and sent to:-
O’Sullivan Safety Ltd (Head Office)
U600 Jordanstown Road
Greenogue Business Park
All notices to the Supplier under this Agreement shall be in writing and sent to:-
No waiver by the Purchaser of any breach of the Contract by the Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
Nothing in this Agreement shall constitute or shall be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute the Supplier as agent of the Purchaser for any purpose whatsoever and the Supplier shall have no authority or power to bind the Purchaser or to contract in the name of or create a liability against the Purchaser in any way or for any purpose.
19.0 FORCE MAJEURE
19.1 Force Majeure means:-
19.1.1 war, hostilities (whether war be declared or not), invasion, act of foreign enemies;
19.1.2 ionising radiation’s, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;
19.1.3 pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
19.1.4 rebellion, revolution, insurrection, military or usurped power or civil war;
19.1.5 riot, civil commotion or disorder, strikes, lockout or labour unrest; except where solely restricted to employees of the Supplier;
19.1.6 any circumstances beyond the reasonable control of either of the parties.
19.2 If either party is prevented or delayed from or in performing any of its obligations under this Agreement by Force Majeure in spite of all reasonable endeavours to continue to perform its obligations under this Agreement, then it shall notify the other party of the circumstances constituting the Force Majeure and of the obligations, performance of which, is thereby delayed or prevented.
19.3 The party giving the notice shall thereupon be excused the performance or punctual performance, as the case may be, of such obligation for so long as the circumstances of prevention or delay may continue.
19.4 Either party shall be excused the performance of any obligation for a continuous period of [ ] days. Thereafter either party may at any time, provided the Force Majeure is still continuing, terminate this Agreement without liability, by [ ] days' notice in writing to the other terminating this Agreement.
19.5 If this Agreement is terminated under clause [ ] the Purchaser shall pay to the Supplier in so far as the same shall not have already been included in invoices paid by the Purchaser or be the subject of an advance payment, the fees for the Materials properly delivered prior to the date of termination.
20.0 COMPLIANCE WITH STATUTE
The Supplier shall comply with all requirements and/or obligations of any statute, statutory instrument, rule, order, regulation, directive and/or bylaw laid down by legislation, Government Departments and/or EU Bodies dealing with and relating to the manufacture, packaging, packing, distribution, importation, pricing or sale of the Materials or any other provision of this Agreement.
21.0 GOVERNING LAW
These Conditions shall be governed by and shall be read and construed in all respects in accordance with Irish law and each of the parties hereto submits to the non-exclusive jurisdiction of the Republic of Ireland Courts.