These Terms of Sale are effective and binding from 1 January 2009 and shall apply to all Supply Agreements entered into after that date. No alternative or additional terms or conditions shall apply to the sale of the Goods, including any standard conditions of purchase of the Customer, even if they are printed on the written Order of the Customer or any other document issued by the Customer. BnM reserves the right to alter or amend any of these Terms of Sale without notice. A copy of BnM’s most up-to-date Terms of Sale are available on www.bnm.ie or upon request in writing to BnM.
In these Terms of Sale:-
“BnM” means Bord na Móna UK Limited
“Customer” means any person, firm, company or unincorporated association, which orders or buys Goods from BnM;
“Terms of Sale” means these terms and conditions of sale and any amendments, alterations or revisions made to them after the date hereof;
“Goods” mean the goods ordered by the Customer from BnM, in an Order which has been accepted by BnM;
“Invoice” means the Invoice given or dispatched to the Customer detailing the Goods and the Price; “Order” means an order for Goods placed by a Customer with BnM and is subject to acceptance in accordance with the provisions of clause 3 below;
“Price” means the total Price to be paid by the Customer to BnM for the supply of the Goods in accordance with clause 8.1 of these Terms of Sale;
“Representative” means a person, firm or company authorised to collect or receive Goods on the Customer’s behalf;
“Supply Agreement” means these Terms of Sale together with an Order, which has been accepted by BnM in accordance with the provisions of clause 3 below. Each accepted Order will constitute a separate Supply Agreement between BnM and the Customer.
3. ACCEPTANCE OF ORDERS
3.1 Any quotation relating to Goods supplied by BnM and any catalogue, mail shot, email or other advertisement of such goods shall constitute an invitation to treat only and not an offer to contract. Any Order placed by a Customer with BnM for Goods (including Orders for Goods on approval) shall be accepted entirely at the discretion of BnM and, if so accepted will only be accepted subject to these Terms of Sale.
3.2 A Customer’s Order, whether oral or in writing shall be deemed to have been accepted by BnM upon the earlier of: –
3.2.1 acceptance by BnM of payment in cleared funds for the Goods; or
3.2.2 dispatch to the Customer of a note advising that the Customer’s Order has been recorded and will be fulfilled once the Goods, to which the purchase order relates are available; or
3.2.3 delivery of Goods to the Customer or to its Representative.
4. DELIVERY OF GOODS AND RISK
4.1 Unless otherwise agreed in writing between an authorised BnM Manager and the Customer, BnM shall effect delivery of Goods (at BnM’s discretion) either CIF (Incoterms 2000) to the port closest to the Customer’s premises (if transportation is to be by waterway) or CIP (Incoterms 2000) to the Customer’s premises (if transportation is to be by land).
4.2 BnM shall use reasonable efforts to meet any requested delivery date but shall not be liable (in contract, tort, negligence or otherwise) for any loss or damage resulting from its failure to do so, howsoever caused.
4.3 Unless agreed otherwise in writing between an authorised BnM Manager and the Customer, delivery of the Goods shall be deemed to have taken place when the Goods are delivered either to the port closest to the Customer’s premises (if CIF) or to the Customer’s premises (if CIP) as stated on the Order (“Delivery”).
4.4 Risk in the Goods shall pass to the Customer immediately the Goods are delivered to the Customer or its Representative, notwithstanding any failure by the Customer or its Representative to endorse its acceptance. BnM shall not have any responsibility in respect of the safety of the Goods thereafter, notwithstanding that the title to the Goods shall not have passed to the Customer. Goods damaged by the Customer, its servants or agents whilst unloading are the responsibility of the Customer. The Customer shall be responsible to insure the Goods against all risks from the time of Delivery.
4.5 BnM reserves the right to reduce, cancel or suspend delivery of the Goods, in the event that it is unable for operational or other reasons to deliver an Order either wholly or in part.
5.1 BnM warrants that: –
5.1.1 it has the right to sell the Goods; and
5.1.2 the Goods shall, at the time of Delivery, correspond with their description as set out in the current brochures issued by BnM or the specifications set out in the Order, unless the Customer is specifically advised by BnM to the contrary, prior to delivery of the Goods.
5.1.3 shall notify the Customer, as soon as it becomes apparent to BNM, if it is unable to fulfill it’s supply obligations fully in respect of the Order.
5.1.4 shall endeavour to supply any derogation from the Order coming out of a situation under 5.1.3.
5.2 BnM’s employees or agents are not authorised to make any representations in selling the Goods unless confirmed by an authorised BnM Manager in writing. In entering into the Supply Agreement the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. Any advice or recommendation given by BnM or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by an authorised BnM Manager is followed or acted upon entirely at the Customer’s own risk and accordingly BnM shall not be liable for any such advice or recommendation which is not so confirmed.
5.3 BnM makes every effort to supply Goods in good condition and of reliable quality consistent with the standards specified by the Customer but BnM accepts no responsibility for the condition of the Goods after Delivery and, without prejudice to the generality of the foregoing, accepts no responsibility for the replacement of any crops which fail to grow as anticipated in BnM’s Goods due to unsuitable conditions, adverse weather conditions, vandalism, neglect, planting methods or other causes beyond BnM’s control.
5.4 BNM does not make any representation or Warranty to the Customer as to the fitness, quality or suitability of the Product for any purpose, since BNM does not have any knowledge of the use of the
Product for a purpose which is not, or in a place where any one or more of the climate, temperature, soil, soil condition, ground water and rain water is not, the same or substantially the same as that in Ireland.
5.4 Barcodes (if any) on the packaging of Goods are correct at time of going to print and are subject to change at any time at BnM’s discretion without notice.
6. INSPECTION AND ACCEPTANCE OF GOODS
6.1 Goods are not supplied on a sale or return basis and a signature must be given at the time of each Delivery.
6.2 In the case of Goods supplied on a bulk basis, the volume of the Goods invoiced shall be the volume measured by BnM or its agent (in accordance with the EN method) when loading the Goods at its or its agents premises.
6.3 The Customer shall, or shall procure that its Representative shall upon Delivery:
6.3.1 sign a “proof of delivery” docket confirming the quantity received. Such signature is to be regarded as proof of Delivery; and
6.3.2 inspect the Goods and, within seven days of Delivery, or in the case of latent defects within seven (7) days of discovery of the defect (time being of the essence), give notice in writing to BnM of any alleged defect or damage to the Goods or of any other matter or thing by reason whereof the Customer alleges that the Goods are not in accordance with the Order. If the Customer shall fail to give such notice, the Goods shall be conclusively presumed to be in accordance with the Order in all respects and the Customer shall not thereafter be entitled to reject the Goods or to claim from BnM in respect of any damage or other defect in the Goods.
6.4 Where a Customer has requested BnM to order a particular ingredient to prepare a specific product for the Customer’s requirements, BNM shall have the express right to charge the customer for this particular ingredient or if BNM has already prepared the specific product, for the specific product, as per the provisions of clause 8 below, notwithstanding any decision by the Customer to cancel the order subsequent to the particular ingredient being ordered
7. TITLE TO GOODS
7.1 Notwithstanding delivery and passing of risk in the Goods, or any other provision of these Terms of Sale, title to the Goods shall not pass to the Customer until BnM has received in cash or cleared funds payment in full of the Price.
7.2 Until title to the Goods passes, the Customer shall keep the Goods free from any lien, charge or encumbrance. BnM may at any time require the Goods to be returned to it by the Customer and if such requirement is not met, within three days of demand for return to it, BnM may take possession of the Goods. For this purpose BnM may visit (and BnM and its authorised agents are hereby authorised to enter) any premises of the Customer or third party where the Goods are kept for the purpose of taking possession of the Goods.
7.3 Until such time as title to the Goods passes to the Customer, the Customer shall hold same as BnM’s fiduciary agent and custodian and keep them separate from its property and from that of third parties and properly stored, protected and insured and identified as the property of BnM. If the Customer shall sell or otherwise dispose of or process the Goods (or any part thereof) it shall receive and hold as trustee for BnM the proceeds of such sale, disposal or process or other monies derived
from or representing the Goods (or any part thereof) (including insurance proceeds) and shall keep such proceeds or other monies separate from any monies or property of the Customer and/or third parties, and shall as soon as possible after receiving the same pay such monies to BnM or into a separate account in trust for BnM.
7.4 BnM shall be entitled to sue for the Price once payment is due in accordance with the terms of Clause 8.2, notwithstanding that title to the Goods has not passed to the Customer.
8. PRICE AND PAYMENT
8.1 Unless otherwise agreed in writing with an authorised BnM Manager, the Price shall be the price listed in BnM’s price list current at the date of the Order, plus Value Added Tax and any other applicable taxes or duties as shall be specified in the Invoice.
8.2 Unless otherwise agreed in writing between an authorised BnM Manager and the Customer, the Price shall be payable in the currency stated in the Invoice on or before the date which is sixty (60) days after the date of the Invoice (the “Due Date”).
8.3 BnM reserves the right to charge interest on overdue accounts of 2% per month over the European Central Bank ( ECB) base rate. If the Price is not paid in full by the Due Date, the Customer shall reimburse BnM (on a full indemnity basis) for all costs and expenses incurred by BnM in connection with the recovery of any monies due to BnM.
8.4 Without prejudice to the provisions of clause 8.3, it is hereby expressly agreed that, if the Customer does not pay an Invoice in a timely manner, this shall be considered a fundamental breach of the terms of the Supply Agreement and BnM may, at its option, either suspend all further deliveries of Goods to be made under the Supply Agreement until payment is made in full or cancel the Supply Agreement and subsequent Supply Agreements so far as Goods remain to be delivered to the Customer.
8.5 Payments made by the Customer to BnM shall be applied by BnM to Invoices, and to Goods listed in Invoices, in such order or manner as BnM shall at its entire discretion think fit.
8.6 The Customer shall make all payments, without set-off or counterclaim and free and clear of all taxes, deductions, withholdings and other charges.
8.7 Any complaints or claims regarding invoicing must be made in writing to BnM within 14 days of receipt of the Invoice.
8.8 BnM is entitled to cancel a Supply Agreement at any time if the Customer has exceeded or will (as a result of the Supply Agreement in question or otherwise) exceed the Customer’s authorised credit limit with BnM.
Whenever under a contract any sum of money shall be recoverable from or payable by the Customer, the same may be deducted from any sum then due or which at any time thereafter may become due to the Customer under that or any other contract between the Customer and BNM or any company within the Bord na Móna group of companies. Nothing in this clause shall prejudice any other rights or remedies available to BNM under the Contract or at law.
10.1 Subject to Clause 10.4 below, if BnM is in breach of the warranties given by it under Clause 5.1, its liability shall be limited to:
10.1.1 replacement of the Goods concerned; or
10.1.2 at the option of BnM, reimbursement of the Price.
10.2 Subject to Clause 10.4 BnM shall have no further liability to the Customer other than as described in Clause 10.1 whether under these Terms of Sale or on any other basis including liability in tort as a result of the sale of the Goods.
10.3 Subject to Clause 10.4, BnM shall not under any circumstances be liable to the Customer by reason of any representation or warranty, condition or other term or any duty of common law, or under the express terms of these Terms of Sale, for any consequential loss (including losses attributable to shortages in delivery or delay in delivery by BnM), special, incidental or punitive loss or damage (whether for loss of current or future profits, loss of enterprise value or otherwise) and whether occasioned by the negligence of BnM, its employees or agents or otherwise, even if advised of the possibility of such damages.
10.4 Nothing in these Terms of Sale shall exclude or limit the liability of BnM for death or personal injury resulting from the negligence of BnM or any of its employees or agents, nor shall they operate to exclude or limit any statutory rights which cannot be legally excluded or limited, including the statutory rights of a consumer.
THE CUSTOMER SHALL INDEMNIFY BNM IN RESPECT OF ALL LOSS, DAMAGE OR INJURY OCCURRING TO ANY PERSON, FIRM, COMPANY OR PROPERTY, AND AGAINST ALL ACTIONS, SUITS, CLAIMS AND DEMANDS, CHARGES OR EXPENSES IN CONNECTION THEREWITH FOR WHICH BNM MAY BECOME LIABLE IN RESPECT OF THE GOODS IN THE EVENT THAT SUCH LOSS, DAMAGE, OR INJURY SHALL HAVE BEEN OCCASIONED BY THE NEGLIGENCE OR BREACH OF DUTY OR BREACH OF THE TERMS OF THE SUPPLY AGREEMENT BY THE CUSTOMER.
12.1 In the event of the Customer committing any breach of any term or provision of the Supply Agreement (including, for the avoidance of doubt, these Terms of Sale), going into liquidation, having a receiver, examiner or other similar officer appointed over the whole or any part of its assets, becoming bankrupt or insolvent or granting any trust deed or entering into any composition or similar arrangement with its creditors, or if any circumstances arise which, in the sole opinion of BnM render any of the foregoing likely to occur, then BnM shall be entitled, without notice and without any liability whatsoever, to terminate the Supply Agreement forthwith and to enter the Customer’s premises for the protection, removal, realization and disposal of any of the Goods, title in which shall not have passed to the Customer in accordance with these Terms of Sale. BnM shall also be entitled to cancel all Orders or any part thereof remaining unfilled between BnM and the Customer and to sell to any other party or otherwise dispose of and deal with such Goods.
12.2 Termination of the Supply Agreement shall not discharge any pre-existing liability of the Customer to BnM and on such termination BnM shall be entitled to recover from the Customer such loss or damage as BnM has suffered by reason of such termination.
13. FORCE MAJEURE
13.1. Should BnM be delayed in or prevented from making delivery of the Goods due to war, strikes, lock-outs, fire, floods, explosion, labour disturbances, trade disputes, failure or shortage in production, supply, transportation or delivery of raw material or due to any other cause whatsoever beyond the reasonable control of BnM, BnM shall be at liberty (in its sole discretion) to cancel or suspend the Supply Agreement without incurring any liability for any loss or damage arising therefrom (whether in contract, negligence in Tort or otherwise).
14. RIGHTS OF THIRD PARTIES
No provision of this Supply Agreement shall be construed as creating any rights enforceable by a third party and any third party rights implied by law are, to the extent permissible by law, excluded from this Supply Agreement.
15.1 No failure or delay by BnM to exercise any right, power, remedy or privilege shall operate as a waiver of the same.
15.2 The construction validity and performance of the Supply Agreement shall be governed by and construed in accordance with the laws of England and Wales and for all matters arising under, out of or in connection with the Supply Agreement the parties hereby submit to the exclusive jurisdiction of the English courts.