These Conditions of Sale (“the
Conditions”) shall apply, to the exclusion of all other terms and conditions,
to each transaction (“the Contract”) for the sale of goods (“the Goods”) by
Espac Limited (“the Company”) to a purchaser of Goods (“the Buyer”), unless
otherwise agreed in writing or as provided below.
Previous conditions of sale shall apply to each
Contract, unless inconsistent with the terms of the Contract, in which case the
Contract shall apply.
The price of the Goods (“the Price”) shall be the Company’s
quoted price and shall be exclusive of VAT, delivery, carriage and insurance.
The Company shall be entitled to increase the Price at any time before the
Goods are despatched to reflect any increase in the cost to the Company arising
from any factor beyond its control or any changes in
Delivery dates, quantities or specifications requested by the
Buyer or any delay caused by the Buyer’s failure to provide adequate
information or instructions.
Unless otherwise agreed, the Buyer shall pay the Price (whether
or not formally demanded) on or before the end of the month following the month
in which the Goods are delivered. The time of payment of the Price shall be of
the essence of the Contract.
If the Buyer fails to make any payment when due then, without
prejudice to any other right or remedy available to the Company, the Company
shall be entitled to:
Contract or suspend any further deliveries to the Buyer;
charge the Buyer interest (both before and after any judgement)
on the amount unpaid at the rate of 4% per annum above Central Bank of Ireland base rate
from time to time until payment in full is made, such interest to be compounded
at quarterly intervals;
withdraw all credit facilities extended to the Buyer and require
immediate payment of any and all outstanding invoices issued by the Company to
the Buyer whether or not they are due for payment;
Cancel and withdraw any trade discount allowed to the Buyer on
Any date quoted for delivery of the Goods shall be approximate
only and the Company shall not be liable for any delay in the delivery of the
Goods whatsoever. Delivery shall be made to the address agreed with the
If the Buyer fails to take delivery of the Goods or fails to
give adequate delivery instructions to the Company then, without prejudice to
any other right or remedy available to the Company, the Company may store the
Goods until actual delivery and charge the Buyer for the reasonable costs
(including insurance) of storage and after a period of 7 days sell the Goods at
the best price readily obtainable and (after deducting reasonable storage and
selling expenses) account to the Buyer for the excess over the Price or charge
the Buyer the amount of any shortfall.
Risk of damage to, or loss of, the Goods shall pass to the Buyer
on delivery or, if the Buyer wrongfully fails to take delivery, at the time
when delivery is tendered. The property in the Goods shall not pass to the
Buyer until the Company has received payment in full of the Price and of the
Price of all other Goods agreed to be sold by the Company to the Buyer for
which payment is then due.
Until property in the Goods passes to the Buyer, the Buyer shall
hold the Goods as the Company’s fiduciary agent and bailee, shall keep the
Goods separate from those of the Buyer and third parties, keep the Goods
properly stored, protected and insured and identified as the Company’s property
and the Buyer shall not pledge or charge the Goods by way of security or
otherwise. Until that time the Buyer shall be entitled to resell or use the
Goods in the ordinary course of its business but shall account to the Company
for the proceeds of sale or otherwise of the Goods, and shall keep all such
proceeds separate from any monies or property of the Buyer and third parties
and, in the case of tangible proceeds, properly stored, protected and insured.
The Company shall be entitled at any time to require the Buyer to deliver up
the Goods to the Company and, if the Buyer fails to do so, to enter upon any
premises of the Buyer or of any third party where the Goods are stored and
repossess the Goods. Any breach of this clause by the Buyer shall cause all
monies owing to the Company to become immediately due and payable.
If the Buyer makes any voluntary arrangement with its creditors,
becomes subject to an Administration Order, or (being an individual or firm) becomes
bankrupt, or (being a company) goes into liquidation (otherwise than for the
purposes of amalgamation or reconstruction), or an encumbrancer takes
possession, or a Receiver is appointed of any of the property or assets of the
Buyer, or the Buyer ceases or threatens to cease to carry
on business or the Company reasonably apprehends that any of the
events mentioned in this clause is about to occur (and notifies the Buyer
accordingly) then, without prejudice to any other right or remedy available to the
Company, the Company shall be entitled to cancel the Contract
or suspend any further deliveries without any liability on the
part of the Company 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.
(a) Subject as provided below the Company warrants that the
Goods will correspond to their specification at the time of delivery and shall
be free from defects in materials and workmanship. All other warranties,
conditions or other terms implied by statute or common law are excluded to the
fullest extent permitted by law.
Except in respect of death or personal injury caused by the
Company’s negligence, the Company’s entire liability under each Contract shall
be limited to the Price attributable to the Goods which are the subject of the
claim. The Company shall not be liable to the Buyer for any consequential or
special loss or damage (whether for loss of income, profit or otherwise),
costs, expenses or other claims for compensation which arise out of, or in
connection with, the supply of the Goods or their use or resale by the Buyer.
Any claim by the Buyer which is based on any defect in the
quality or condition of the Goods or their failure to correspond with
specification or non or incorrect delivery shall (whether or not
delivery is refused by the Buyer) be notified to the Company within 7 days from
the date of delivery or (where there is non or incorrect delivery or the defect
or failure was not apparent on reasonable inspection) within a reasonable time
after discovery of the defect or failure. If delivery is not refused, and the
Buyer does not notify the Company accordingly, the Buyer shall not be entitled
to reject the Goods and the Company shall have no liability for such defect or
the Buyer shall
be bound to pay the Price as if the Goods had been delivered in accordance with
Where any valid claim is notified to the Company, the Company
shall be entitled to repair or replace the Goods (or the part in question) free
of charge or, at the Company’s sole discretion, grant credit to
or refund to the Buyer the Price of the Goods (or a
proportionate part of the Price), but the Company shall have no further
liability to the Buyer.
The Company shall not be liable to the Buyer or in breach of
contract where performance of its obligations is prevented, frustrated or
impeded as a result of any act of God, war, or civil disturbance, strikes or
other industrial action, government or other authority, laws, regulations or
orders, national emergencies, lockout, fire, flood, draught, tempest, import or
export restrictions, power failure, difficulty in obtaining materials or Goods
or any other cause beyond the control of the Company.
(a) Each Contract shall only
confer rights and benefits on the Buyer and no third party shall acquire rights
or benefits under the Contract or these Conditions.
Any notice given under these Conditions shall be in writing
addressed to the registered office or principal place of business of the
addressee or such other address as may at the relevant time have been notified
as the correct address.
No waiver by the Company of any breach of the Contract by the
Buyer shall be considered as waiver of any subsequent breach of the same or any
The Conditions and each Contract
shall be governed by and construed in accordance with the laws of Ireland.