1.1. “Seller” shall mean Greenspan UK Limited its successors and assigns or any person acting on behalf of and with the authority of Greenspan UK Limited.
1.2. “Buyer” shall mean the person or entity described as such on the invoices, application for credit, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall mean any person acting on behalf of and with the authority of such person or entity.
1.3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Buyer on a principal debtor basis.
1.4. “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Buyer.
1.5. “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6. “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 3 of this contract.
1.7. “Sub-contractor” shall mean an individual, partnership or company that signs a contract with the Seller to perform part or all of the obligations of the Seller’s contract
2.1. Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2. Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.3. Orders placed by the Buyer by telephone must be confirmed in writing within twenty four (24) hours and the Seller shall not be bound to supply Goods or otherwise committed in any way until the Seller has accepted such offer expressly or implied by delivering the Goods.
2.4. Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be amended with the written consent of the Seller.
2.5. The Buyer undertakes to give the Seller at least fourteen (14) days notice of any change in the Buyer’s name, address and/or any other change in the Buyer’s details.
3. Price And Payment
3.1. At the Seller’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) the Seller’s quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Buyer shall accept the Seller’s quotation in writing within thirty (30) days.
3.2. The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
3.3. Any and all extra costs that occur due to a sub-contractor’s inability to comply with the agreed schedule will be charged in full to the sub-contractor at the Seller’s normal rates, which may change from time to time, and such charges are agreed to be discharged within seven (7) working days of the invoice date.
3.4. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.
3.5. Retention clauses form no part of this contract; all monies due to the Seller are to be paid in full immediately on completion of the contract.
3.6. At the Seller’s sole discretion payment for approved Buyers shall be due thirty (30) days following the end of the month in which an invoice is raised to the Buyer.
3.7. Payment will be made by cheque, or by direct credit, or by any other method as agreed to between the Buyer and the Seller.
3.8. VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
3.9. Invoices may be traded with our invoice factoring company and as such will then be subject to the terms and conditions of the factoring company.
4. Delivery Of Goods
4.1. At the Seller’s sole discretion delivery of the Goods and shall take place when:
(a) the Buyer takes possession of the Goods at the Seller’s address. Without prejudice to any other rights hereunder the Seller may cancel any contract where the Goods are not collected within 21 days of the specified delivery date; or
(b) the Buyer takes possession of the Goods at the Buyer’s address or any other physical address or site address nominated by the Buyer, their employees, agents or assigns either verbally or in writing (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier); or
(c) the Buyer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Buyer’s agent.
4.2. At the Seller’s sole discretion the costs of delivery are:
(a) included in the Price, where the volume of the Goods to be delivered is a minimum of one palette load, or
(b) in addition to the Price, where the quantity of Goods delivered is less than one palette load.
4.3. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
4.4. Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
4.5. The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6. The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
4.7. Goods will be delivered to the kerbside adjacent to the delivery site. If at the Buyer’s request, the delivery vehicle leaves the road and enters the delivery site to unload the Buyer is responsible for providing suitable and safe access for the Seller’s delivery vehicle and agrees to indemnify the Seller and its agents for all damage and injury to any person and to any public or private property which may result, including any costs associated with enabling the delivery vehicle to leave the site.
4.8. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
4.9. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
5.1. If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
5.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6.1. It is the intention of the Seller and agreed by the Buyer that ownership of the Goods shall not pass until:
(a) the Buyer has paid all amounts owing for the particular Goods, and
(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer.
6.2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.
6.3. It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Buyer are met; and
(b) until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods; and
(e) the Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; and
(f) the Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
(g) the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and
(h) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer; and
(i) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.
7. Buyer’s Disclaimer
7.1. The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Buyer by any servant or agent of the Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer’s skill and judgment.
8.1. The Buyer shall inspect the Goods on delivery and shall within twenty four (24) hours (for private Buyers) and forty eight (48) hours (for industrial Buyers) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions t he Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
8.2. No Goods shall be accepted for return except in accordance with 8.1 above.
9.1. Subject to the conditions of warranty set out in Clause 9.2 the Sub-contractor warrants that if any defect in any workmanship of the Sub-contractor becomes apparent and is reported to the Subcontractor within twelve (12) months of the date of delivery (time being of the essence) then the Subcontractor will either (at the Subcontractor’s sole discretion) repair the defect or remedy the workmanship.
9.2. The conditions applicable to the warranty given by Clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) Failure on the part of the Buyer to properly maintain any Goods; or
(ii) Failure on the part of the Buyer to follow any instructions or guidelines provided by the Subcontractor; or
(iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Subcontractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
9.3. For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
9.4. To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
10. Sale of Goods Act 1893 and Sale of Goods and Supply of Services Act 1980
10.1. This agreement is subject to the provisions of the Sale of Goods Act 1893 and the Sale of Goods and Supply of Services Act 1980 in all cases except where the Buyer is contracting within the terms of a trade/business (which cases are specifically excluded).
10.2. Notwithstanding clause 10.1 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Sale of Goods Act 1893 (in particular sections 12-15), or the Sale of Goods and Supply of Services Act 1980, or any laws or legislation governing the rights of consumers, except to the extent permitted by those Acts laws or legislation.
10.3. In particular where the Buyer buys Goods as a consumer the provisions of Clauses 8 and 9 above shall be subject to any laws or legislation governing the rights of consumers.
11. Default & Consequences of Default
11.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 1.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
11.2. If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
11.3. Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
11.4. If any account remains overdue after thirty (30) days then an amount of the greater of €20.00 or 10.00% of the amount overdue (up to a maximum of €200) shall be levied for administration fees which sum shall become immediately due and payable.
11.5. Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
12. Security and Charge
12.1. Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) The Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1. The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
13.2. In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3. In circumstances where the buyer has placed a special order to the seller for materials not normally held in stock or where the buyer has placed an order with special instruction to manufacture product then the buyer is liable for all costs including transport, manufacturing costs and profits on all such materials whether delivered to the buyer or not in the event of the buyer cancelling such orders.
14. Data Protection Act 1988 & Data Protection Act 2003
14.1. The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to:
(a) collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer’s creditworthiness or marketing products and services to the Buyer; and
(b) to disclose information about the Buyer, whether collected by the Seller from the Buyer directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing (whether before or after judgement) a default by the Buyer on publicly accessible credit reporting databases.
14.2. Where the Buyer is an individual the authorities under (clause 14.1) are authorities or consents for the purposes of the Data Protection Act 1988 & Data Protection Act 2003.
14.3. The Buyer shall have the right to request the Seller for a copy of the information about the Buyer retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer held by the Seller.
15. Health and Safety
15.1. The attention of the Buyer is drawn to the provisions of Section 6 of the Health and Safety at Work etc Act 1989. The Seller will make available such information as is appropriate related to the Goods supplied as is in its possession to ensure that as far as it is reasonably predictable they are safe and without risk to health when properly used.
15.2. The Buyer hereby undertakes pursuant to section 6(8) of the Health and Safety at Work etc Act 1989 to take such measures as are communicated in writing to the Buyer by the Seller and to take such other steps as are sufficient to assure, so far as is reasonably practicable they are safe and without risk to health and safety when properly used. The Goods shall not be regarded as properly used, when they are used without regard to any relevant information or advise relating to their use, which has been communicated to the Buyer pursuant to this Clause.
15.3. The Seller shall not be liable to the Buyer in any civic proceedings brought by the Buyer against the Seller under any Health and Safety Regulations made pursuant to the Health and Safety at Work etc Act 1989 where such exclusion of liability is permitted by law.
15.4. The Buyer shall indemnify and keep indemnified the Seller in respect of any liability, monetary penalty or fine in respect of or in connection with the Goods incurred directly or indirectly by the Seller under the Health and Safety at Work etc Act 1989 or any regulations, orders or decisions made thereunder.
16. Buyer’s Responsibilities
16.1. It is the Buyer’s responsibility to:
(a) accept the recommended specifications of the Seller and sub-contractor; and
(b) provide adequate and safe access to the site for delivery. Delays in gaining access to, or from, the delivery site will attract chargeable Downtime; and
(c) Ensure that any building/construction sites comply with all occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation; and
(d) the Seller is not responsible removal of rubbish from or clean up of the building/construction site/s. This is the responsibility of the Buyer or the Buyers agent; and
(e) have all areas clean and clear to enable scheduled work to be completed in accordance with the agreed schedule. Delays to the work caused by the Buyer, their employees or agents will result in chargeable downtime; and
(f) provide adequate and safe access to the site for all workmen and equipment. Delays in gaining access to, or from, the site will attract chargeable downtime; and
(g) fully disclose any information that may effect the Sub-contractor’s procedures; and
(h) ensure that adequate lighting is provided in the working area; and
(i) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Buyer. All care is taken but no responsibility accepted by the Seller and/or Sub-contractor in this regard; and
(j) provide suitable and adequate waste disposal facilities unless otherwise agreed with the Seller and/or Sub-contractor; and
(k) where the Buyer acts as a principal in a sale of Goods contract with third parties, under no circumstances shall the Buyer act as the Seller’s agent and/or commit the Seller in any way, and the Buyer shall indemnify the Seller in full against all claims brought by any such third party against the Seller in respect of the Goods.
16.2. If the giving of an estimate or quotation for the supply of Goods involves the Buyer and/or the Sub-contractor estimating measurements and quantities, it shall be the responsibility of the Sub-contractor to verify the accuracy of the Seller’s estimated measurements and quantities, before the Sub-contractor places an order based on such estimate or accepts such quotation.
16.3. Once delivery has taken place it is the Buyer and/or Sub-contractor’s responsibility to:
(a) provide suitable storage for and maintain the Goods properly; and
(b) follow any instructions or guidelines for storage, handling and maintenance provided by the Seller.
17. Sub-contractor’s Responsibilities
17.1. It is the sub-contractor’s responsibility to:
(a) accept work delays due to bad weather for their own cost; and;
(b) follow the advice of the Seller and use the Goods in line with the material specification; and
(c) take responsibility and liability for the full cost of repairing any and all damages (including but not limited to, wash-off or issues with the application) caused by the Sub-contractor through failure work in accordance with the material specification or use of Goods against the Seller’s advice; and
(d) order the Goods in proper manner, giving at least 48 hours notice of delivery; and
(e) repair and make good any and all damage on site.
18. Specification and Packing
18.1. All information as to the size, density or quantity of Goods given in any quotation on price list of the Seller and expressly referred to by the Buyer in an order is intended as an approximate indication only.
18.2. The Goods will be packed at the Seller’s absolute discretion.
19.1. The written and signed order and its contents are final and take precedent over all other documentation and/or alleged verbal agreements or actions that might inadvertently or otherwise have taken place between the sub-contractor and Seller’s representative.
19.2. Any change in the contract will only be valid when it is expressly accepted in writing and signed by both the sub-contractor and the Seller and provided that the Goods ordered have not gone into production.
19.3. Any notice or other communication to be given under these conditions must be in writing and may be delivered or sent by pre-paid first class letter, facsimile transmission or via e-mail. Any notice or document shall be deemed served, if delivered, at the time of delivery, if posted, 48 hours after posting, and if sent by facsimile or e-mail transmission, at the time of transmission.
19.4. Each clause of this contract is severable and distinct from the others. If any provision of these terms and conditions is or becomes invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.5. These terms and conditions and any contract to which they apply shall be governed by the laws of Ireland and are subject to the jurisdiction of the courts of Ireland.
19.6. The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
19.7. In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
19.8. The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by the Seller.
19.9. The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
19.10. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
© Copyright – EC Credit Control 2009
Location: Dublin, Ireland