GENERAL TERMS AND CONDITIONS OF PURCHASE
i. "Buyer" shall mean the Company so named in the Purchase Order.
ii. "Contract" shall mean the contract between the Buyer and Seller consisting of the
Purchase Order, these conditions and any other documents (or parts thereof) agreed by the parties. Where any special conditions of purchase are imposed by the Buyer and are in conflict with these general terms and conditions, the special conditions shall prevail.
iii. “Goods" includes all goods covered by the Purchase Order whether raw materials, processed materials or fabricated products or any of them or any services or labour to be provided either in connection with the Goods or separately.
iv. "Purchase Order" shall mean the Buyer's Purchase Order to which these conditions are attached.
v. "Seller" shall mean the person, firm or company to whom the Purchase Order is issued.
2. Other Conditions and Authorisation
Unless expressly agreed in writing by the Buyer, any terms and conditions proposed by the Seller are hereby expressly excluded and the Seller shall be deemed to have accepted these conditions by accepting the order whether in writing or orally or by commencing work on the Purchase Order or by delivering the Goods. No variation or amendment to these conditions shall be valid unless stated in writing and signed by an authorised representative of each party. The Buyer will accept no liability for any goods delivered or services provided unless the Purchase Order has been placed or amended by a duly authorised officer of the Buyer.
3. Terms and Conditions Imposed by Statute
The Buyer's rights under these Terms and Conditions are in addition to the statutory conditions implied in favour of a purchaser by the Sale of Goods Act 1979 (as amended) in relation to the UK and the Sale of Goods and Supply of Services Act 1980 in relation to Ireland.
The Buyer is relying on the Seller's skill and judgment in relation to the Goods supplied. The Seller warrants that: -
i. Goods shall at all times (a) be of merchantable and satisfactory quality and be free from defects and (b) comply with the requirements of any statute, statutory rule, order, directive or regulation in force at the time of delivery whether applicable to the design, manufacture or supply and use or installation of the Goods and, in particular, Goods and all related literature shall conform with the description supplied by the Seller.
ii. If Goods are perishable or have a limited life expectancy, the Seller shall notify the Buyer and furnish details in relation to storage requirements for the Goods and
such information shall form part of the description of the Goods.
iii. All foodstuffs and liquor supplied hereunder are at the time of delivery guaranteed to be of the nature, substance and quality described by the Seller and to conform in every respect with the requirements of the Food Safety Act 1990 as amended or substituted and other relevant statutory regulations relating to foodstuffs.
iv. The Seller shall repair or replace at its own cost, any defects in the Goods during the period of twelve (12) months from putting into service or eighteen (18) months from delivery whichever shall be the shorter, where such defects occur under proper usage and are attributable to faulty design, materials or workmanship. Repairs and replacements hereunder shall themselves be subject to the foregoing obligation for a period of twelve (12) months from the date of delivery, re-installation, repair or replacement. The provisions of this Clause shall be without prejudice to any other rights of the Buyer resulting from defects in the Goods supplied.
5. Increase in Price and Changes to the Specification
If the Seller wishes to increase the price, it shall notify the Buyer in writing of any proposed increase. If such notified increase is accepted by the Buyer in its absolute discretion, such increase shall be deemed to apply thirty (30) days after the date of such acceptance by Buyer unless otherwise expressly agreed in writing with Seller.
The Buyer reserves the right, on giving three months written notice to the Seller, to change the specification and any packaging or labelling requirements relating to the Goods.
6. Inspection and Testing
The Seller prior to delivery shall inspect all Goods and the Buyer shall rely on the Seller's skill and judgment in assessing the fitness for use of the Goods for the purpose specified or implied. The Seller shall make available to the Buyer, such information as the Buyer may request in relation to such inspection and the Buyer shall be granted such reasonable right of access as the Buyer may require for checking inspection procedures.
i. Time shall be of the essence of the Contract and the Seller shall, at its risk and expense, deliver the Goods to the places, in the manner and within such time limits as shall be specified by the Buyer. Delivery is only deemed to be effected once the Seller has obtained clear signature on the delivery note from an authorised officer of the Buyer to confirm the Goods have been received.
ii. The Buyer shall, as soon as reasonably practical, give notice to the Seller of any loss or damage to the Goods while in the course of delivery and at the Buyer's request, the Seller shall promptly repair or replace such lost or damaged Goods.
iii. If the Seller fails for any reasons whatsoever to deliver the Goods within any time limit
specified in the Contract, the Buyer may, at its option grant to the Seller such further extension as it shall think fit (time of delivery so extended being of the essence), or terminate the Contract or any part thereof by notice in writing.
iv. The Seller shall be responsible for all health, safety and other safety requirements in
connection with the delivery of the Goods.
8. Passing of Property and Risk
The property and risk in the goods shall remain in the Seller until they are delivered to the Buyer in accordance with Clause 7 hereof at any delivery point specified in the Purchase Order and accepted in writing by a duly authorised officer of the Buyer. Where the Goods or any part are retained by the Seller pending delivery instructions, the property in such Goods shall pass to the Buyer upon payment by the Buyer but the risk in such Goods shall remain with the Seller until actual delivery.
9. Terms of Payment
Unless otherwise stated in the Purchase Order, payment will normally be made on or about the last day of the month next following the receipt of the Goods and agreement of the invoice.
10. Right of Set-off
The Buyer reserves the right to set off any sum due at any time from the Seller to the Buyer whether under the Contract or otherwise and whether a liquidated or un-liquidated amount, against any amount payable by the Buyer to the Seller under the Contract.
If Goods delivered by the Seller do not comply with the Purchase Order or any of these conditions are broken or not complied with, the Buyer may reject the Goods and thereupon without prejudice to the Buyer's right to damages or subsequently to repudiate the Contract, the Seller shall deal with the Goods in such manner as the Buyer may reasonably direct and any monies paid in respect of such rejected Goods shall be repaid by the Seller.
12. Product Recall
The Seller agrees to notify the Buyer immediately upon becoming aware of any possible or actual recall of any Goods or any circumstances which might reasonably necessitate or make desirable a recall of any Goods.
i. The Seller will keep the Buyer indemnified and hereby indemnifies the Buyer in full against any and all losses, liability, damage, injury, claim, action, demand, expense or proceeding awarded against, suffered, incurred or paid by the Buyer as a result of or in connection with: -
- Any breach by the Seller of any term of the Contract (including any such terms implied by law) or any negligent act, omission or willful misconduct of the Seller, its employee’s agents or sub-contractors;
- Any breach of the Seller of any statute, regulation, bye-law or EU directive in
- Respect of the Goods which it supplies to the Buyer.
- Any defect in the Goods or in the materials used in the design, processing, manufacture, storage or transportation of the Goods; or
- Any claim made against the Buyer by any guest, customer or third party to the extent that such was caused by, relates to or arises from the Goods.
ii. The Seller shall indemnify the Buyer against any and all loss or damage to all property and injury or death to any person arising from any inherent defect of design, faulty materials or workmanship or as a result of the Seller his servants or agents suffering or causing any injury or death, loss or damage whilst on the Buyer's premises or delivering thereto arising out of the installation and commissioning of any Goods or any subsequent repairs and servicing thereto or carrying out any service.
iii. In addition, the Seller shall have in force employers' liability insurance as required by statute or a minimum of €13,000,000 and public and product liability insurance for a minimum limit of liability of €6,500,000 or any other such amount as required by the Buyer and shall also effect insurance for such other risks as the Buyer shall reasonably require.
iv. The Seller shall exhibit to the Buyer, on demand, current premium receipts or confirmation that the insurances as required by the Buyer are in force.
14. Confidentiality and Patents
i. The subject matter of the Contract and all terms and conditions in relation thereto shall be confidential between the parties and shall not be disclosed to any third party by either of the parties without the prior written consent of the other.
ii. The Seller shall keep confidential all information (written or oral) whatsoever which may be supplied by the Buyer to the Seller in connection with the Contract and any documentation shall, if applicable, be returned on demand to the Buyer.
iii. The Seller undertakes with the Buyer to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 14i and 14ii above by its employees, agents and sub-contractors.
iv. The Seller warrants that the Goods themselves and the delivery of the goods does not infringe any patent rights, and shall indemnify the Buyer against any claims for infringement of patents, registered designs, trademarks or copyright arising out of use or sale of any goods supplied by the Seller to the Buyer and against all costs and damages which the Buyer may incur in any action for such infringement or for which the Buyer may become liable in any such action.
15. Data Protection/GDPR
Where the performance of the Contract requires or results in the processing of any Personal Data (as defined by General Data Protection Regulation (EU) 2016/679 (the “Data Protection Laws”), the following shall apply.
The Seller acknowledges and agrees that the Buyer is the Data Controller and the Seller is a Data Processor in respect of all Personal Data processed pursuant to the Contract.
The Seller warrants and represents that it shall process Personal Data only for the purpose of performing the Seller's obligations under the Contract on documented instructions that the Buyer may give to the Seller from time to time and in compliance with the Data Protection Laws.
The Seller warrants and represents that it shall:
i. not do anything that would put the Buyer in breach of the Data Protection Laws;
ii. put in place before undertaking any processing and maintain appropriate technical and organisational measures in accordance with Articles 5 and 32;
iii. provide the Buyer with such assistance as the Buyer requires to ensure compliance with Data Protection Laws, taking into account the nature of the processing and the information available to the Seller;
iv. maintain a record of all of its processing activities under or in connection with the Contract and of the measures implemented under this clause in accordance with the
requirements of Article 30 of and make such record available to the relevant Supervisory Authority;
v. provide the Buyer with such information as it requests from time to time to enable the Buyer to satisfy itself that the Seller is complying with its obligations under this clause;
vi. not cause or allow Personal Data to be transferred to and/or otherwise processed in a non-EU country without the Buyer’s prior written approval; and
vii. inform the Buyer without undue delay and in any event within 24 hours if the Seller becomes aware of or suspects there has been a breach of Personal Data.
16. Force Majeure
In the event of the manufacture, delivery or commissioning of the Goods being prevented or delayed by any act or circumstance beyond the Buyer's or the Seller's reasonable
control the Buyer may, at its discretion, suspend or cancel the delivery of the Goods and/or performance of the Contract without any liability to the Seller for payment. The Seller must immediately notify the Buyer of an event of Force Majeure and describe in
reasonable detail the nature of the event of force Majeure and its likely impact on the Seller's ability to perform its obligations hereunder. The Seller shall use all reasonable endeavours to resume performance of its obligations as soon as reasonably practicable.
17. Assignment and Sub-Contracting
The Seller shall not, without the written consent of the Buyer, assign, transfer or sub contract this Contract or any part of it to any third party.
i. If the Seller becomes insolvent or (being a Company), makes an arrangement with its Creditors, or has receiver appointed or commences to be wound up (other than for the purposes of amalgamation or reconstruction), or commits a breach of this Contract and fails to remedy the same within a reasonable period: -
- The Buyer may (without prejudice to any other of its rights), terminate the Contract forthwith by notice to the Seller or any person in whom the Contract may have become vested; and
- The Seller grants the Buyer the right to enter on to the premises where the Goods are, for the purposes of removing any of the Goods or packaging bearing the Buyer's name, brand name, trade name or trade marks from such premises, subject to payment in full by the Buyer of monies payable in respect of such Goods.
ii. The Buyer may terminate the Contract in whole or in part by giving the Seller three months written notice.
The waiver by the Buyer of a breach or default of any of the conditions herein by
the Seller shall not be construed as a waiver of any succeeding breach of the same or other provisions.
20. Invalidity and Severability
If any provision herein shall be found in any Court or Administrative Body of competent jurisdiction to be invalid or unenforceable in whole or in part the invalidity or unenforceability of such provisions shall not affect the other provisions of the Contract or the remainder of the provision and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Seller and the Buyer hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid and unenforceable provision.
Headings used in the Contract are for reference purposes only and shall not be deemed to be or construed to be part of the Contract.
i. Any notice, invoice or other communication which either party is required by the Contract to serve on the other party shall be sufficiently served if sent to the other party at its specified address set out in the Purchase Order (or such other address as is notified to the other party in writing) as follows: -
- by hand;
- by registered post; or
- by facsimile transmission confirmed by ordinary post.
ii. Notices sent by registered post shall be deemed to be served three (3) working days following the day of post. Notices sent by facsimile transmission shall be deemed to be served on the day of transmission if transmitted before 5 pm on a working day, but otherwise on the next following working day. In all other cases, notices are deemed to be served on the day when they are actually received.
23. Terms of Proper Law
The Contract for the purchase of the Goods and/or services hereby ordered shall be governed and construed in accordance with the laws of the Republic of Ireland and the parties hereby submit to the jurisdiction of the Irish Courts