Terms and Conditions
General terms and conditions of sale, delivery and payment
Of the private company with limited liability EWPP Ltd trading as O'Sullivans Marine, with registered office at Tralee and its principle place of business, (hereinafter: the "Conditions")
1. Definitions
1.1 As used in these Conditions, the following terms shall have the following meaning, unless the context requires otherwise:
Buyer: the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
Goods: the Goods (including any installment of the Goods or any parts for them) which the Seller is to supply to the Buyer in accordance with these Conditions;
Parties: Seller and Buyer;
Party: Seller or Buyer;
Seller: O'Sullivans Marine.;
Contract: the contract for the purchase and sale of the Goods as concluded between the Seller and the Buyer;
Writing: includes e-mail, facsimile transmission and comparable means of communication.
2. Applicability
2.1 These Conditions will apply to all offers, legal relationships and Contracts under which the Seller provides Goods and/or services and/or make deliveries of whatever nature to the Buyer. Deviations from and additions to these Conditions will only be valid if they have been expressly agreed upon by Parties in Writing.
2.2 The applicability of the Buyer's purchasing or other terms and conditions is expressly rejected.
2.3 In the event of conflict between provisions of the Contract and these Conditions, the provisions of the Contract shall prevail.
2.4 Any typographical, clerical or other error or omission in any document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Offers; Purchase orders and specifications; Contract
3.1 All Seller's offers are entirely without obligation for the Seller.
3.2 Acceptance of the offer by the Buyer must be in Writing to the Seller. The Contract will be effected between the Seller and the Buyer upon receipt by the Seller of the offer signed for approval by the Buyer.
3.3 No purchase order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller's authorized representative.
3.4 All purchase orders will be subject to a carriage and handling charge unless otherwise specified with O’Sullivans Marine. Prices for larger export orders are quoted on request.
4. Price of the Goods
4.1 The price of the Goods shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of acceptance of the order. All prices quoted are valid for thirty (30) days only or until earlier acceptance by the Buyer.
4.2 The price displayed by any online source is not a direct representation of the seller's published price list.
4.3 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the costs to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.4 The price is exclusive of any applicable value added tax (VAT), which the Buyer shall be additionally liable to pay to the Seller.
5. Terms of payment
5.1 Unless explicitly agreed otherwise in Writing, Seller shall be entitled to invoice Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by Buyer or Buyer wrongfully fails to take delivery of the Goods, in which event Seller shall be entitled to invoice Buyer for the price at any time after Seller has notified Buyer that the Goods are ready for collection or (as the case may be) Seller has tendered delivery of the Goods.
5.2 Subject to any special terms agreed in Writing, Buyer shall pay the price of the Goods within thirty (30) days of the date of Seller's invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to Buyer. The time of payment of the price shall be of the essence of the Contract. All payments shall be to the bank account of Seller.
5.3 The date of payment by Buyer is the date on which the amount due has been credited to the bank account of Seller.
5.4 The Buyer is not entitled to set off claims or to compensate, unless explicitly otherwise agreed upon between Parties.
5.5 If Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to:
(a) cancel the Contract or suspend any further deliveries to Buyer;
(b) appropriate any payment made by Buyer to such of the Goods (or the goods supplied under Contract between them) as Seller may think fit (notwithstanding any purported appropriation by Buyer); and
(c) charge Buyer interest (both before and after any judgment) on the amount unpaid, on a daily basis at the rate of ten per cent (10%) per annum above ABN Amro Bank base rate from time to time, until payment in full is made.
6. Delivery
6.1 Unless otherwise agreed orders are shipped by first class ordinary post or by private carrier service. If Seller agrees to any other method of delivery the additional cost shall be payable by Buyer.
6.2 Any dates quoted for delivery of the Goods are approximate only and Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by Seller and Buyer in Writing.
6.3 Where the Goods are to be delivered in installments, each delivery shall constitute a separate Contract and failure by Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by Buyer in respect of one or more installments shall not entitle Buyer to treat the Contract as a whole as repudiated.
6.4 If Seller fails to deliver the Goods for any reason other than any cause beyond Seller's reasonable control or Buyer's fault, and Seller is accordingly liable to Buyer, Seller's liability shall be limited to the excess (if any) of the costs to Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 In case of non-delivery or shortages, Buyer must notify Seller in Writing within three (3) working days. In case of receipt of damaged Goods the receipt should be signed DAMAGED and Seller must be notified in writing immediately. Buyer must refuse parcels delivered in a damaged condition. If shipping is done in different boxes and products are claimed missing against the pick slip included in each box, the Buyer must notify the Seller immediately identifying the box in which the products are missing. Failure to identify the box will render the claim invalid and Seller cannot be held liable for any compensation.
6.6 If Buyer fails to take delivery of the Goods or fails to give Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of Seller's fault) then, without prejudice to any other right or remedy available to Seller, Seller may:
(a) store the Goods until actual delivery and charge Buyer for the reasonable costs (including insurance) of storage; or
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to Buyer for the excess over the price under the Contract or charge Buyer for any shortfall below the price under the Contract.
6.7 Buyer shall in no circumstances be entitled to return any Goods without written consent of Seller. Upon approval Seller's return authorization number will be given which must be quoted and Seller will inform Buyer with return instructions which must be followed.
6.8 Goods returned for credit must be in first class saleable condition complete with all manuals and undamaged original packaging.
6.9 If Goods are returned through Buyer's mistake, Seller, if it accepts the returned Goods, may make a fifteen (15%) deduction from the value of the credit note, by way of handling charge.
6.10 Seller reserves the right, without prior notice, to discontinue any product or to change the design of a product as part of its Product Improvement Programme.
7. Credit notes
7.1. Buyer shall follow Seller´s instructions when returning Equipment that it has notified to Seller as set out in paragraphs above. The Buyer will ensure that Equipment, including any accessory, manuals and other associated documentation, is returned in an otherwise "as new condition", in its original packaging and that the seal is not broken, unless otherwise agreed by Seller in writing. Seller may at its option either reject any returns that are not in accordance with its instructions or that are incomplete, or charge a restocking fee.
7.2. Seller will raise a credit note for all returns that are not rejected in accordance with clause (7.1.) above. So, Seller will only be bound to issue a credit note if it cannot exchange or repair the articles returned in their original packaging. Custom developed products can never be credited and shall always be repaired or replaced.
7.3. Credit notes are valid for 6 months from the date shown on the Credit note as it is issued. Credit notes will not be paid out and its credit expire 6 months from the date shown on the Credit note as it is issued. After expiry, the credit note is no longer valid and the credit is forfeit. It is the responsibility of the receiver to ensure the credit note is redeemed before the expiry date.
7.4. In no case may the Seller be held liable for the consequences of the defective use of the products sold or the consequences of the use thereof that is not the use for which they are ordinarily intended. Nevertheless, Seller´s sole liability for incomplete or damaged Equipment on arrival will be to replace the Equipment with the same or other equivalent equipment at its own expense.
8. Risk and Property
8.1 Risk of damage to or loss of the Goods shall pass to Buyer:
(a) in the case of Goods to be delivered at Seller's premises, at the time when Seller notifies Buyer that the Goods are available for collection; or
(b) in the case of Goods to be delivered otherwise than at Seller's premises, at the time of shipment or, if Buyer wrongfully fails to take delivery of the Goods, the time when Seller has tendered delivery of the Goods.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions the property in the Goods shall not pass to Buyer until Seller has received payment in full of the price and other costs relating to the Goods agreed to be sold by Seller to Buyer for which payment is then due.
8.3 Until such time as the property in the Goods passes to Buyer, Buyer shall hold the Goods as Seller's fiduciary agent and bailee, and keep the Goods separate from those of Buyer and third parties and properly stored, protected and insured and identified as Seller's property. Until that time Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8.4 Until such time as the property in the Goods passes to Buyer (and provided the Goods are still in existence and have not been resold), Seller shall be entitled at any time to require Buyer to deliver up the Goods to Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of Buyer or any third party where the Goods are stored and repossess the Goods.
8.5 Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Seller, but if Buyer does so all money owing by the Buyer to Seller shall (without prejudice to any other right or remedy of Seller) forthwith become due and payable.
9. Warranties
9.1 Subject to the conditions set out below Seller warrants that the Goods will correspond with their specifications in the Contract at the time of delivery and that they will be free from defects in materials and workmanship for a period of twelve (12) months from delivery. Nevertheless, overseas warranties are generally provided for various periods of time depending on the product and the area in which it is marketed. Products in our outlet store are not covered by a 12 months warranty: the warranty on Outlet Store products is 60 days from delivery.
9.2 The above warranty is given by Seller subject to the condition that Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
9.3 A complaint under the warranty, in detail and in Writing, must be lodged with the Seller immediately, but in any event within ten (10) working days after discovery of the defect, failing which any warranty obligation of the Seller shall lapse.
9.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the specifications in the Contract is notified to Seller in accordance with clause 9.3, Seller shall replace the Goods (or the part in question) free of charge or, at Seller's sole discretion, refund to Buyer the price of the Goods (or a proportionate part of the price), but Seller shall have no further liability to Buyer.
9.5 Defects to the goods that are a consequence of improper use, defective maintenance or use for other than normal business purposes or inappropriate use are not covered by the warranty mentioned above.
9.6 In the event of changes to the Goods, which include repairs and dismantlement of the Goods, that are carried out without Seller's consent in Writing of the Seller and/or where parts other than those supplied by Seller are used, any claim or warranty shall lapse.
9.7 Where the Goods are sold under a consumer transaction the statutory rights of Buyer are not affected by these Conditions.
10. Liability
10.1 Except in respect of death or personal injury caused by Seller's intent or gross negligence, Seller shall not be liable to Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty [at common law], or under the express terms of the Contract, for any damages (direct or indirect) or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the intent or gross negligence of Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by Buyer, except as expressly provided in these Conditions.
10.2 Buyer shall indemnify Seller from any claim of any third party with respect to the Goods.
10.3 Seller's total liability under these Conditions shall be limited to the compensation of direct damages, up to at the most the amount paid by the insurance, increased with the amount deductible. In the event that the liability of Seller is for whatever reason not covered by any insurance taken out by the Seller, the liability of Seller will be limited tot the amount of the purchase price of the Goods leading to liability, and shall in any event never exceed EUR 50,000.
10.4 Seller shall not be liable to Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond Seller's reasonable control.
11. Force Majeur
11.1 A Party shall not be obligated to perform any obligation under the Contract or these Conditions if it is prevented from doing so by a situation of force majeur.
11.2 Force majeur shall for example and in any event mean: war, threat of war, mobilization, natural disasters, import/export or transit bans, strike action, labour unrest and transport problems.
11.3 If a situation of force majeur lasts for more than [90] days, the Parties shall be entitled to terminate the Contract by rescinding it in Writing, What has already been performed pursuant to the Contract shall in that case be settled proportionally, without the Parties otherwise owing each other anything. In that event, Parties will not be liable towards each other.
12. Data Protection Act
12.1 Seller makes its mailing list available to companies whose product or services might interest you. If you would prefer to have your name withheld, please write to the Database Administrator, at the office registered address.
13. Insolvency of Buyer
13.1 This clause applies if:
13.2 Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being a natural or legal person) becomes bankrupt or (being a legal person) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
13.3 an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of Buyer; or
13.4 Buyer ceases, or threatens to cease, to carry on business; or
13.5 Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to Buyer and notifies Buyer accordingly.
13.6 If a situation as mentioned under 13.1 occurs, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability towards Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14. Export terms
14.1 Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and the payment of any duties thereon.
15. General
15.1 Any notice required or permitted to be given by either Party to the other under these Conditions shall be in Writing addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time been notified pursuant to this provision to the Party giving notice.
15.2 No waiver by Seller of any breach of the Contract by Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.3 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.
15.4 The Contract shall be governed by Irish law and the Parties submit to the exclusive jurisdiction of the Irish courts. All disputes concerning the conclusion, explanation or performance of a Contract concluded between Seller and Buyer shall be brought exclusively before the court.