TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
1. Interpretation a
1.1 In these Conditions, the following definitions apply:
“Business Day” a day (other than Saturday, Sunday or a 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 Condition 16.10 (General);
“Contract” the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or the supply of Services in accordance with these Conditions;
“Customer” the person or firm who purchases the Goods and/or Services from the Supplier;
“Delivery” has the meaning given in Condition 3.5 (Delivery);
“Force Majeure Event” has the meaning given in Condition 14 (Force Majeure);
“Goods” The goods (or any part of them) set out in the Order;
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Invoice” a written and or emailed invoice sent by the Supplier to the Customer detailing the price of the Goods and/or Services provided;
“Customer Order” the Customer’s order for the Goods and/or Services, as set out in the Customer’s purchase order form or the Customer’s written or emailed acceptance of the Supplier’s quotation, as the case may be;
“Suppliers Order Confirmation” a written and or emailed notice sent by the Supplier to the Customer confirming that the Order has been accepted;
“Services” any services to be provided by the Supplier under the Contract;
“Specification” any specification for the Goods, including any related plans and drawings, that is supplied to the Supplier by the Customer, or produced by the Supplier and agreed in writing by the Customer; and “Supplier” IPP IRL Ltd, Industrial Production Processes Ireland Limited, incorporated and registered in Ireland with company number #639985 and whose registered office is at 18D Euro Business Park, Little Island, Cork, or Industrial Production Processes (IPP) Ltd incorporated and registered in England and Wales with company number 03652413 and whose registered office is at Saxon Business Park Hanbury Road, Stoke Prior, Bromsgrove, Worcestershire, United Kingdom, B60 4AD.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 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; and
1.2.5 a reference to writing or written includes faxes and e-mails provided always that e-mails sent to the Supplier must be sent to such e-mail address as the Supplier may notify the Customer for this purpose.
2. Basis of Contract
2.1 Subject to Condition 2.2 below, 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 For the avoidance of doubt, any written distribution agreement between the Supplier and the Customer will override these Conditions to the extent they contradict each other on a specific common item, where said written distribution agreement doesn’t legislate for any provision covered by this contract the validity and enforceability of the other provisions of the contract shall not be affected.
2.3 The Customer Order constitutes an offer by the Customer to purchase the Goods and/or receive the Services in accordance with these Conditions. The Customer shall ensure that the terms of the Customer Order and any relevant Specification are complete and accurate.
2.4 The Customer Order shall be deemed to be accepted when the Supplier issues the Supplier Order Confirmation, substantially begins to perform the Services or delivers the Goods (at which point the Contract shall come into existence).
2.5 The Contract (together with any additional terms set out in the Supplier Order Confirmation) 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. Any additional terms set out in the Supplier Order Confirmation shall prevail over these Conditions.
2.6 Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the sale of the Goods and/or the supply of Services.
2.7 A quotation for the Goods and/or Services given by the Supplier shall not constitute an offer. Subject to any agreement to the contrary the Supplier’s quotations are valid for 30 days from the date of issue (errors and omissions excepted). The Supplier can withdraw such quotation by notice in writing or email to the Customer at any time.
2.8 No standard terms or conditions endorsed upon, delivered with or contained in the Customer’s Purchase Order, acceptance of quotation, specification or similar document shall form part of the contract and the Customer waives any right which it otherwise might have to rely on those documents.
2.9 In the event of any dispute or conflicting terms the order of priority shall be (1) these Conditions, (2) the Invoice, (3) the Suppliers Order Confirmation, (4) the Supplier’s quotation and (5) the Customer’s Order.
2.10 The Supplier will not be liable for any losses resulting from inaccuracies in the Customer’s Order Confirmation that are not brought to its attention on receipt.
2.11 The Supplier may make any changes to the specification of the Goods and Services which are needed to conform with any safety or other legal requirement.
2.12 Cancellation by the Customer will only be accepted at the discretion of the Supplier. If the Supplier agrees to such cancellation the Customer shall be liable to the Supplier for the payment of the cancellation charges in the following table (unless otherwise agreed in writing) together with any charges imposed on the Supplier by the Supplier’s suppliers due to the cancellation:
3.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers and the type and quantity of the Goods (including the code number of the Goods, where applicable). If requested by the Supplier, and without prejudice to the Customer’s rights under these Conditions, the Customer shall sign this delivery note to acknowledge Delivery of the Goods.
3.2 If the Supplier agrees to deliver the Goods it shall do so by the means most convenient to the Supplier to the address or addresses agreed by the Customer and the Supplier or (in the event that the Customer fails to specify an address) to any address at which the Customer resides or carries on business in Ireland or the UK (i.e The Republic of Ireland or the United Kingdom (the “Delivery Location”).
3.3 While the Supplier will endeavour to deliver the Goods or complete the Services by any date or within any period agreed upon, such dates and periods are estimates only given in good faith and the Supplier will not be liable for any failure to deliver or complete by such a date or within such a period. Time of Delivery is not of the essence.
3.4 Unless otherwise agreed in writing or email, packing cases are not returnable.
3.5 Subject to Condition 3.6, Delivery of the Goods shall be completed on the earliest of:
3.5.1 completion of the unloading of the Goods at the Delivery Location (whether by the Supplier or by a thirdparty engaged to deliver the Goods on its behalf);
3.5.2 if the Supplier collects the Goods (or arranges for a third-party to do so on its behalf), the point at which the Goods begin to be loaded onto the vehicles provided by the Supplier, or the relevant third-party.
3.6 If for any reason the Customer fails to take delivery of the Goods within 3 Business Days of the Supplier attempting Delivery on the agreed Delivery date:
3.6.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by the Supplier's negligence);
3.6.2 Delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready;
3.6.3 the Supplier may store the Goods until Delivery takes place, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance); and
3.6.4 the Supplier may levy further charges to recover its losses arising from this event.
3.7 If 10 Business Days after the Supplier notified the Customer that the Goods were ready for Delivery the Customer has not taken Delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.8 No claim for faulty Goods or shortages will be considered unless the Supplier is advised in writing, such notice shall be given to the Supplier as soon as is reasonably practical.
3.9 No claim for non-delivery of Goods shall be considered unless the Supplier is advised in writing, such notice shall be given to the Supplier as soon as is reasonably practical.
3.10 Subject to Condition 3.11, any liability of the Supplier for non-delivery and/or faulty Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any Invoice raised for the Goods.
3.11 Notwithstanding Condition 3.10, the Supplier shall not be liable for any delay in Delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to obtain any relevant import/export authorisations required or failure to provide the Supplier with any instructions that are relevant to the supply of the Goods.
3.12 The quantity of any consignment of Goods as recorded by the Supplier upon collection by the Customer or despatch from the Supplier’s place of business (as applicable) shall be conclusive evidence of the quantity received by the Customer on Delivery unless the Customer can provide conclusive evidence proving the contrary.
3.13 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately as agreed with the Customer. 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.
4.1 Absent a separate warranty issued to the Customer by the Supplier, the Supplier expressly warrants the Goods manufactured and the Services performed by it to the Customer solely as set out in this Condition 4.
4.2 These warranties may be transferred to a subsequent purchaser of the Goods only with the prior written consent of the Supplier.
4.3 The following shall constitute the sole and exclusive remedies of the Customer for any breach by the Supplier of its warranty hereunder.
4.4 The Supplier warrants that the Goods covered by this warranty will be free from defects in workmanship and materials, under normal use, until the earlier of:
4.4.1 12 months from the date of shipment; and
Should any such defects be found and reported during the term of the warranty the Supplier will, at its option, refund the purchase price or correct such defects (furnishing replacement parts and labour free of charge to the Customer).
4.5 The Supplier warrants that the Services will be performed in a workmanlike manner in conformity with standard industry practice. Should any nonconformity be detected within 30 days after the work is completed, and prompt notification is made by the Customer in writing to the Supplier, the Supplier will supply the necessary service, direction or consultation to correct the nonconformity.
4.6 The foregoing warranties are further subject to the following general conditions:
4.6.1 consumables, accessories, normal wear and tear, wear parts and perishables are expressly excluded from the foregoing warranties;
4.6.2 if the Customer requests the performance of warranty work provided for under the foregoing warranties during times other than normal Supplier work periods, the Customer will be required to pay for all premium time and expenses;
4.6.3 these warranties will not apply where the Supplier’s Goods and/or software has been subjected to: accident, alteration, misuse, abuse, failure on the part of the Customer to ensure proper storage, operation, installation and/or maintenance, servicing by anyone other than the Supplier’s authorized personnel, the addition or supply of equipment not approved for incorporation into the Supplier’s Goods or software, integration into the Customer’s environment, or Customer / third party supplied software or interfacing;
4.6.4 products of other manufacturers sold by the Supplier as such are warranted by the Supplier solely to the extent of any remaining warranty provided by the original manufacturer.
4.7 in the event Goods are repaired by the Supplier, the performance of such repair work will not extend existing nor generate new warranty coverage for the Goods as a whole or for those parts not repaired or replaced by the Supplier.
4.8 To correct defects the Supplier may attempt to diagnose and resolve the defect over the telephone or electronically. Certain Goods contains remote support capabilities for direct problem reporting, remote problem determination, and resolution with the Supplier.
4.9 When the Customer contacts the Supplier for warranty work, it must follow the problem determination, resolution and procedure that the Supplier specifies. At any time following or to assist in problem determination, the Supplier may require return of the part or product to depot for service.
4.10 If the Supplier determines on-site work is required, a service technician will be scheduled for on-site work. If the Customer gives notice of a defect to the Supplier and requests the Supplier for on-site work when the defect could have been remedied remotely, or if the Supplier responds to the Customer’s notice of defect and no defect is found for which the Supplier is liable, the Supplier shall be entitled to compensation for any work performed and costs it has incurred as a result of the Customer’s request.
4.11 The Customer agrees to use available remote support technologies where it is reasonably possible to do so. Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination and resolution may result in increased response-time and additional costs ( including expenses) to the Customer.
4.12 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract (including warranties as to merchantability or fitness for a particular purpose).
4.13 Any figures given for the performance of the Goods are based upon such as the Supplier expects to obtain on test. The Supplier will only guarantee performance within specified margins as stated in the quotation or Order Confirmation and the Customer shall assume responsibility for the capacity and performance of the Goods being sufficient for the Customer’s purpose.
5. Title and risk
5.1 The risk in the Goods shall pass to the Customer on Delivery.
5.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
5.3.1 hold the Goods on a fiduciary basis as the Supplier's bailee;
5.3.2 store the Goods so that they remain readily identifiable as the Supplier's property;
5.3.3 not remove, deface or obscure any identifying mark on or relating to the Goods;
5.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of Delivery;
5.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in Condition 8.2 (Customer’s Insolvency…); and
5.3.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time,
5.3.7 not resell the goods (which, for the avoidance of doubt, shall include any period that the Customer is subject to any of the events listed in Condition 8.2 (Customer’s Insolvency…).
5.4 If before title to the Goods passes to the Customer and the Customer has not complied with the agreed payment terms (Section 7 Price and Payment) and the Supplier reasonably believes that the Customer will remain in violation of the agreed payment terms and notifies the Customer accordingly, then 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 or of any third party where the Goods are stored in order to recover them.
5.4.1 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 8.2 (Customer’s Insolvency…), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then 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 or of any third party where the Goods are stored in order to recover them.
5.5 The Customer shall indemnify the Supplier for all related costs and expenses (including collection costs, legal fees and court costs) incurred by the Supplier in recovering the Goods pursuant to Condition 5.4 above.
6. Supply of Services
6.1 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
6.2 The Supplier 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 or quality of the Services, and the Supplier shall notify the Customer in any such event.
7. Price and payment
7.1 The price of the Goods and/or Services shall be the price set out in the Customer Order or (if provided) the Supplier Order Confirmation (the price set out in the Supplier Order Confirmation shall take priority).
7.2 The Supplier may, by giving notice to the Customer at any time up to 1 Business Day before Delivery of the Goods and/or performance of the Services, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services that is due to:
7.2.1 any request by the Customer to change the delivery date, quantities or types of Goods and/or Services ordered, or the Specification; or
7.2.2 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 the costs and charges of packaging, insurance and transport (if applicable) of the Goods, which shall be paid by the Customer when it pays for the Goods.
7.4 The price of the Goods and/or Services is exclusive of amounts in respect of value added tax (“VAT”) that the Supplier may incur. The Customer shall, on receipt of a valid VAT invoice pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services.
7.5 The Supplier may at any time require payment in advance or payment on account prior to providing the Goods and/or Services.
7.6 In the event that the Supplier has agreed to waive its right to receive payment in advance or on account in accordance with Condition 7.5 above then, unless stated otherwise in the “Commercial Details” set out in the relevant quotation, the Customer shall pay each Invoice in full and in cleared funds within 30 calendar days of the date of the invoice.
7.7 Unless otherwise agreed in writing, the Supplier shall be entitled to invoice the Customer for the Goods or Services or any instalment thereof on or at any time after:
7.7.1 Delivery of the Goods or any instalment thereof; or
7.7.2 completion of the Services or any instalment thereof,
unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Customer at any time after:
7.7.3 the Supplier has notified the Customer that the Goods are ready for collection; or
7.7.4 (as the case may be) the Supplier has tendered delivery of the Goods.
7.8 Without prejudice to Conditions 7.5 and 7.6 above, if the Contract provides for staged payments the Supplier shall be entitled to payment at such intervals as may be specified in the Contract. Unless otherwise expressly agreed by the parties in writing any element of the payment for Goods which is payable on installation of the Goods shall be payable by the Customer whether or not the installation is carried out by the Supplier, the Customer or a third-party (such payments are deferred payments for the Goods and not installation charges).
7.9 If the Contract is to be fulfilled in separate instalments, payment of each instalment, delivery, or part shall be as if the same constituted a separate contract. However, in the event of the Supplier accepting payment by instalments any delay in the receipt by the Supplier shall, without prejudice to any other right, forthwith entitle the Supplier to the whole of the outstanding Contract sum and the Supplier shall be entitled to suspend any further deliveries of Goods or performance of Services.
7.10 Where the Supplier has agreed that the price is payable in a currency other than that agreed in the quotation all banking and similar charges incurred by the Supplier may be recharged to the Customer.
7.11 All payments shall be made to the bank account nominated in writing or email by the Supplier and time of payment is of the essence.
7.12 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (the “due date”), then:
7.12.1 the Customer shall pay interest on the overdue amount at the rate of 10% per annum above The Central Bank Of Ireland’s base rate, or The Royal Bank of Scotland plc’s base rate. Such interest shall accrue on a daily basis and being compounded quarterly 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;
7.12.2 the Supplier may suspend the delivery of all Goods and/or Services until payment has been made in full; and
7.12.3 the Customer shall indemnify the Supplier for all related costs and expenses (including collection costs, legal fees and court costs) incurred by the Supplier in recovering payments.
7.13 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.
7.14 Where the Customer requires special packaging for the Goods the Supplier reserves the right to make an additional charge therefore.
8. Customer's insolvency or incapacity
8.1 If the Customer becomes subject to any of the events listed in Condition 8.2 below, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, 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 and/or Services delivered to the Customer shall become immediately due.
8.2 For the purposes of Condition 8.1 above, the relevant events are:
8.2.1 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of the Companies Act 2014, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of the Personal Insolvency Act 2015 or (being a partnership) has any partner to whom any of the foregoing apply; or
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
8.2.3 (being an individual) the Customer is the subject of a bankruptcy petition or order; or
8.2.4 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
8.2.5 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
8.2.6 (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
8.2.7 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
8.2.8 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 8.2.1 to Conditions 8.2.7 above (inclusive); or
8.2.9 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
8.2.10 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9. Customer’s Obligations
9.1 The Customer shall:
9.1.1 ensure that the terms of the Customer Order and (if submitted by the Customer) the Specification are complete and accurate;
9.1.2 co-operate with the Supplier in all matters relating to the Services;
9.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Goods and Services;
9.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
9.1.5 prepare the Customer's premises for the supply of the Goods and Services and at all times provide a safe working environment for the Supplier’s employees agents or sub-contractor and will comply with all other regulations in connection therewith and will indemnify the Supplier in respect of any loss incurred by the Supplier due to the Customer’s breach of this Condition;
9.1.6 keep and maintain all Goods remaining the property of the Supplier and delivered on site until the Supplier has removed the same;
9.1.7 maintain sufficient insurance to comply with it’s obligations under this Contract;
9.1.8 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
9.1.9 pass on to all relevant personnel all information as to the use and safe handling of the Goods as may have been passed on to the Customer by the Supplier.
9.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
9.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
9.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this Condition 9.2; and
9.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
10. International Supply Contract
10.1 If the Contract is an International Supply Contract, it shall be deemed to incorporate the latest edition of Incoterms current at the date of the Contract in accordance with the method of delivery agreed (and, in the absence of such agreement, Ex Works the Supplier’s premises) save that in the event of any inconsistency between Incoterms and any express term of the Contract the latter shall prevail.
10.2 Unless otherwise agreed in writing, in the case of International Supply Contracts the Customer shall arrange payment to the Supplier under full irrevocable letter of credit confirmed by a Bank in Ireland, or bank in the United Kingdom. If for any cause outside the Supplier’s control the Goods cannot be despatched or if the Supplier is not obliged to obtain bills of lading then payment in full shall be made by the Customer upon representation of the Invoice and notification from the Supplier that the Goods are ready for despatch.
11. Installation and Takeover
11.1 Unless otherwise agreed in writing with the Supplier, where the Supplier has agreed to install or commission the Goods an additional charge may be made by the Supplier if the Supplier is prevented from carrying out such installation or commissioning for more than 30 days after Delivery of the Goods by the Supplier unless due to the act or omission of the Supplier.
12. Intellectual Property Rights
12.1 The Customer acknowledges that all Intellectual Property Rights in or arising from the Goods and/or Services belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Goods and/or Services other than the right to use it in accordance with these Conditions.
12.2 If and to the extent that the Specification is provided by the Customer the Customer shall indemnify the Supplier for all costs and expenses (including legal fees and court costs) incurred by the Supplier in defending any claim or action brought against the Supplier by a third party alleging that the Goods (or any part of them) infringes their Intellectual Property Rights if such infringement (or alleged infringement) is a result of the Specification.
12.3 To the extent that any software is inherent in any Goods supplied, the Supplier shall grant the Customer a non-exclusive, royalty free licence to use such software for the sole purpose of operating the Goods.
13. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
13.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
13.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
13.1.2 fraud or fraudulent misrepresentation; or
13.1.3 breach of the terms implied by the sale of good and supply of services act
13.1.4 defective products under the Consumer Protection Act
13.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
13.2 Subject to Condition 13.1 above:
13.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract; and
13.2.2 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 not exceed the price of the Goods and/or Services (as applicable and as set out in the Invoice or Order Confirmation).
14. 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, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
15. Held Harmless
The supplier shall not be liable and ‘’held harmless’’ for any implications or consequences caused by its failure or delay in performing its obligations under the contract, to the extent that such failure or delay was caused by unforeseen or unavoidable technical issues with a project or piece of equipment that were beyond the supplier’s reasonable control.
16. Confidential Information
16.1 The Customer shall keep in strict confidence all technical or commercial know-how, prices, payment terms, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or subcontractors, and any other confidential information concerning the Supplier’s business or its products or its services which the Customer may obtain.
16.2 The Customer shall restrict disclosure of such confidential information to:
16.2.1 such disclosure as may be required by law, court order or any governmental or regulatory authority; and
16.2.2 such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer’s obligations under the Contract. The Customer shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
16.3 This Condition 15 shall survive termination of the Contract.
17.1 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.
17.2 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.
17.3 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 Condition, and shall be delivered personally, sent by post, recorded delivery, commercial courier, fax or e-mail.
17.4 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 16.3 above; if sent by 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, at the time of transmission or if sent by e-mail, at the time of receipt.
17.5 Conditions 16.3 and 16.4 above shall not apply to the service of any proceedings or other documents in any legal action.
17.6 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.
17.7 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.
17.8 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.
17.9 A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.10 Any variation to the Contract shall only be binding when agreed in writing and signed by both parties. A list of authorised signatories of the Supplier is available on request. The Supplier reserves the right to amend these Conditions from time to time provided that the Supplier has given the Customer one months’ written notice of such changes.
17.11 If there is an inconsistency between any of the provisions in these Conditions and the provisions of a quotation which forms the basis of the Contract, the provisions of the quotation shall prevail.
17.12 On termination of this Contract for any reason the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry and clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17.13 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.
18 IPP’s Brexit clause/Terms and Conditions
In the event of Brexit, if either Party considers that the consequences of Brexit materially increase the costs of it performing its obligations under this Agreement and/or reduces its income under this Agreement and/or otherwise adversely affects the benefit it derives from this Agreement, such Party may give notice to the other of the same, and shall promptly supply such details and evidence of such consequences as may reasonably be required by the other Party. Within fourteen (14) days of the other Party receiving such notice, the Parties shall discuss in good faith and agree whether any amendments are required to this Agreement as a result of Brexit, such that the provisions of this Agreement maintain the same overall balance of obligations, benefits, liabilities and risk between the Parties as applied at the date of this Agreement. The Parties agree that the imposition of tariffs and other trade barriers relating to the subject matter of this Agreement and not in existence at the date of the Agreement shall be considered a change in the overall balance.