TERMS & CONDITIONS OF SUPPLY
TERMS & CONDITIONS OF SUPPLY
The following terms and conditions (“Terms”) shall apply to any supply of Products by ABC Momentum Ltd.
By placing an order with, or accepting a delivery of Products from, the Supplier, the Customer warrants and represents it does so in the course of a business or trade and not as a consumer.
1.
1.1
In these Terms, the following expressions shall have the following meanings:
“Contract” means a contract between the Supplier and the Customer for the supply of Products;
“Customer” means the customer who orders Products from the Supplier.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
“INCO Terms” means the terms published by the International Chamber of Commerce in place at the time the contract was formed.
“Prices” means the prices for the Products, as sent by the Supplier to the Customer.
“Products” means the products which may be or are purchased by the Customer from the Supplier under these Terms.
“Supplier” means ABC Momentum Ltd registered in Ireland with company number 707593 and having its registered office at 26/27 Upper Pembroke street, Dublin D02 X361.
“Terms” means these terms and conditions of supply.
1.2
The ejusdem generis rule is not intended to be used in the interpretation of these Terms; it follows that a general concept or category utilised in these Terms will not be limited by any specific examples or instances utilised in relation to such a concept or category.
2.
Exclusion of Other Terms
These Terms and the Contract contain the only conditions upon which the Supplier will deal with the Customer, and they govern all Contracts to the exclusion of all other terms and conditions. In the absence of a Contract, these Terms shall apply exclusively to the supply of Products to a Customer.
3.
Contracts
3.1
Each order for Products given by the Customer to the Supplier will be deemed to be an offer by the Customer to purchase Products from the Supplier subject to these Terms.
3.2
In order for a Contract to come into force:
(a) the Customer must submit an order to the Supplier; and
(b) the Supplier must send to the Customer an order confirmation;
and upon the issue of an order confirmation by the Supplier a Contract will come into force between the parties.
4.
Delivery
4.1
Unless otherwise agreed in writing:
(a) all Products will be delivered by the Supplier to the Customer’s premises or an agreed delivery point;
(b) the Supplier will be responsible for arranging delivery, unloading and insurance for the Products, subject to agreed INCO terms;
(c) risk in the Products will pass from the Supplier to the Customer when the Products are delivered to the Customer.
4.2
If the parties agree that delivery of the Products under a Contract will be by instalments, each instalment will constitute part of a single Contract, and not separate Contracts.
4.3
Any date or dates for the delivery of the Products agreed by the parties as part of a Contract will not be of the essence of the Contract.
4.4
The Customer must inspect the Products on delivery and any non-conformity with the Contract which ought to be apparent on inspection must be immediately notified in writing to the Supplier.
5.
Title
5.1
Legal and equitable title to the Products will pass from the Supplier to the Customer upon the later of:
(a) delivery of the Products; and
(b) receipt by the Supplier of all amounts due from the Customer to the Supplier under the relevant Contract.
5.2
Until title to the Products has passed to the Customer:
(a) the Customer will hold the Products as fiduciary agent and bailee of the Supplier;
(b) the Customer will: (i) store the Products in a secure, safe, dry and clean environment separately from other products and goods; (ii) ensure that the Products are easily identifiable as belonging to the Supplier; (iii) not deface, destroy, alter or obscure any identifying mark on the Products or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Products; and (v) deliver up the Products to the Supplier upon demand.
5.3
The Supplier shall be entitled without further notice to inspect or recover possession of any Products to which it retains title; and the Customer grants to the Supplier and its employees and agents an irrevocable licence to enter at any time any premises where the Products are or may be situated for the purpose of inspecting or removing any such Products the title in which has remained with the Supplier.
5.4
The Supplier may bring an action for the Prices of Products, and any other amounts due under a Contract, notwithstanding that title to the Products has not passed to Customer.
6
Customers obligations
6.1
The Customer will not without the Supplier’s prior written consent make or give any promises, representations, warranties or guarantees:
(a) on behalf of the Supplier; or
(b) in relation to the Products (other than those set out in a Contract in relation to the Products or otherwise mandatory under applicable law).
6.2
Without prejudice to the Supplier’s obligations under Clause 8, the Customer must comply with all applicable laws, rules and regulations relating to, and must obtain all licences, permits and approvals required in relation to:
(a) the marketing, promotion and advertising of the Products; and
(b) import, export, distribution, sale, supply and delivery of the Products.
6.3
The Customer agrees to not change the integrity of the product by means of changing health marks, labels or boxes without significant further processing of the product. The Customer also agrees to show due diligence in prevention of fraudulent activity by their customers as stated above. Failure to do so will lead to cessation of supply with immediate effect and the relevant authorities notified accordingly.
7
Prices and payment
7.1
The Supplier may issue an invoice for the Prices under a Contract to the Customer at any time after the earlier of:
(a) the Contract has come into force;
(b) the Products have been despatched to the Customer; or
(c) the Products have been made available for collection by the Customer.
7.2
The Customer will pay the Prices to the Supplier within agreed payment terms and in default of agreement, within 30 days of the date of issue of an invoice issued in accordance with Clause 7.1.
7.3
All amounts payable under a Contract are exclusive of all value-added and other taxes and duties which will be payable by the Customer, where applicable or unless otherwise agreed.
7.4
If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract, the Supplier may charge the Customer interest on the overdue amount at the rate of 2% per month (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand).
8.
Warranties
8.1
The Supplier warrants that:
(a) the Supplier has (or will have at the relevant time) the right to sell the Products;
(b) the Products are free from any charge or encumbrance, subject to Clause 5 and subject to any other charge or encumbrance disclosed or known to the Customer before the relevant Contract is made;
(c) the Products correspond to any description of the Products supplied by the Supplier to the Customer but are subject to minor variations in colour or texture.
8.2
Any images of Products featuring on the Supplier’s website or marketing materials are for illustrative purposes. Products are subject to minor variations in colour or texture.
8.3
All of the parties’ warranties, liabilities and obligations in respect of the subject matter of each Contract are expressly contained in these Terms or elsewhere in the relevant Contract. Subject to Clause 10.1 and to the maximum extent permitted by applicable law, no other terms concerning the subject matter of a Contract will be implied into that Contract, these Terms or any related contract.
9.
Complaints, credits and replacements
9.1
In the event of a complaint, the Customer must notify the Supplier in writing within 7 days of receipt of the goods.
9.2
The Supplier will promptly and in any event within 7 days, respond to all reasonable enquiries and complaints by the Customer relating to the non-conformity of the Products with the Contract.
9.3
If Products do not conform with the Contract, the Customer must return those Products for either (at the option of the Supplier):
(a) a full credit of the price paid to the Supplier for such Products (excluding original delivery and related charges);
(b) replacement Products; or
(c) a credit note in respect of the Price of the Products (to be offset against future purchases from the Supplier).
9.4
Products returned under Clause 9.2 must be properly packed and returned to an address stipulated by the Supplier within 30 days of receipt of the Products by the Customer. Any Products returned in contravention of this Clause will not be the subject of any credits or replacements and the Customer will continue to be liable for payment of the Price in respect of such Products.
10.
Limitations and exclusions of liability
10.1
Nothing in the Contract will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
10.2
The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Contract:
(a) are subject to Clause 10.1; and
(b) govern all liabilities arising under the Contract or in relation to the subject matter of the Contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
10.3
The Supplier will not be liable in respect of any:
(a) loss of profits, income, revenue, use, production or anticipated savings;
(b) loss of business, contracts or commercial opportunities;
(c) loss of or damage to goodwill or reputation;
(d) loss or corruption of any data, database or software;
(e) special, indirect or consequential loss or damage; and
(f) losses arising out of a Force Majeure Event.
10.4
The Supplier’s aggregate liability under the Contract will not exceed the total amount paid or (if greater) payable by the Customer to the Supplier under the relevant Contract.
11
Contract term and termination
11.1
Each Contract will come into force in accordance with Clause [3], and will continue in force until the earlier of:
(a) the later of completion of:
(i) delivery of all Products; and
(ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract,
and
(b) the termination of the Contract in accordance with the provisions of this Clause.
11.2
A Contract may be terminated in the following circumstances:
(a) either party may terminate a Contract immediately by giving written notice to the other party if the other party commits any material breach of any term of the Contract;
(b) the Supplier may terminate any Contract immediately by giving written notice to the Customer if the Customer fails to pay to the Supplier any amount due under any Contract by the due date for payment; and
(c) the Supplier may terminate any Contract immediately by giving written notice to the Customer if the Customer fails to accept delivery of the Products on the date agreed in the relevant Contract.
11.3
Either party may terminate any Contract immediately by giving written notice to the other party if:
(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract);
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
12.
Effects of termination
12.1
Upon termination of a Contract, all the provisions of that Contract will cease to have effect, save that the following provisions of these Terms will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 5, 6, 7.4, 9, 10, 12, 13 and 14.
12.2
Termination of a Contract will not affect either party’s accrued rights (including accrued rights to be paid and accrued rights to a remedy for breach of condition or warranty) as at the date of termination.
13.
Trademarks
13.1
The Customer may only make use of the Supplier’s trademarks, trade names or any other symbols for the sole purpose of identifying and advertising the Products, within the scope of its activity as retailer of the Products.
13.2
The Customer shall comply with any brand guidelines governing the use of the Supplier’s trademarks published or provided by the Supplier from time to time.
13.3
The Customer hereby agrees neither to register nor to have registered any trademarks, trade names or symbols of the Supplier (nor any trademarks, trade names or symbols of the Customer that may be confused with the Supplier’s ones).
14
General
14.1
No breach of any provision of a Contract will be waived except with the express written consent of the party not in breach.
14.2
If any provision of a Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
14.3
Contracts may not be varied except by a written document signed by or on behalf of each of the parties.
14.4
The Supplier may freely assign its rights and obligations under a Contract without the Customer’s consent. Save as expressly provided in this Clause or elsewhere in a Contract, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under a Contract.
14.5
Each Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to a Contract are not subject to the consent of any third party.
14.6
Subject to Clause 10.1:
(a) these Terms and each Contract will constitute the entire agreement between the parties in relation to the subject matter of the Contract, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into a Contract; and
(c) neither party will have any liability other than pursuant to the express terms of a Contract.
14.7
All Contracts and these Terms will be governed by and construed in accordance with the laws of Ireland. Any controversy or claim arising out of or in connection with a Contract or these Terms shall be settled by arbitration. The arbitration tribunal shall consist of a single arbitrator appointed by agreement between the Parties or, failing agreement between the Parties within 30 days after a request for arbitration is made by any Party, appointed on the application of any Party by the Chairman for the time being of the Bar Council of Ireland.