1 Definitions: In these conditions:
‘Ceramicx’ means Ceramicx Ireland Limited of Gortnagrough, Ballydehob, County Cork, Ireland;
‘Conditions’ means the terms and conditions of sales set out in this document and any special terms and conditions agreed in writing by Ceramicx;
‘Confirmation of Order’ means the confirmation of order issued by Ceramicx to the Customer on which reference is made to these conditions;
‘Customer’ means the person specified in the Confirmation of Order as Purchaser of the Goods from Ceramicx;
“Dispatch Date” means the dispatch date shown in the Confirmation of Order;
“Force Majeure” means in relation to any person, any circumstances beyond the reasonable control of that person (including, without limitation, any strike, lock-out, picket or other form of industrial action or any threatened industrial action);
‘Goods’ means the articles which the Customer agrees to buy from Ceramicx, as specified in the Confirmation of Order;
‘Invoice’ means the invoice issued by Ceramicx in respect of the Goods;
‘Price’ means the price for the Goods, which is (save, in each case, to the extent otherwise stated in the Confirmation of Order) inclusive of packaging and exclusive of carriage, insurance and VAT;
‘VAT’ means any value added tax and any goods and services, sales or other turnover tax, imposition or levy of a like nature chargeable in respect of the sale of the Goods to the Customer.
2 Conditions Applicable
2.1 The Conditions shall apply to all contracts for the sale of Goods by Ceramicx to the customer to the exclusion of all other terms and conditions including any terms or conditions which the customer may purport to apply under any purchase order or otherwise.
2.2 All orders for Goods shall be deemed to be an offer by the Customer to purchase Goods pursuant to the Conditions.
2.3 Acceptance of delivery of the Goods by the Customer shall be deemed conclusive evidence of the Customer’s acceptance of the Conditions.
2.4 Any variation to the Conditions shall be inapplicable unless evidenced by writing signed on behalf of Ceramicx by a duly authorised person. The Customer is notified that no person has been authorised by Ceramicx in this regard, and further, that no person may be taken by the customer to have any such authority unless such person has presented to the customer a written instrument, signed by a director of Ceramicx, conferring upon such person such authority in connection with the Goods.
3 Price and Payment
3.1 The Price of the goods shall be the price set out in the Confirmation of Order. The price is exclusive of VAT. The customer shall pay to Ceramicx the amount of any VAT.
3.2 The customer shall pay direct to Ceramicx the Price, any VAT and any costs of packaging, insurance and delivery specified in the Invoice, on the date specified in the Invoice.
3.3 Time shall be of the essence of each of the Customer’s obligations under this clause 3.
3.4 Interest on overdue payments under this Clause 3 shall accrue from the date when payment becomes due from day to day until the date of payment at that rate which is 2% above Bank of Ireland base rate in force on the date on which payment becomes due, and shall accrue at such rate as well after as before any judgment.
4 The Goods: The quantity and description of the goods shall be as set out in the Confirmation of Order.
5.1 Ceramicx warrants that it will have the right to sell the Goods to the Customer at the time at which title to the Goods is to pass to the customer, and further warrants that the goods will be fit for such purposes as may be specifically notified in writing by Ceramicx to the Customer.
5.2 All other warranties, conditions or terms relating to the goods (other than those provided for in Section 12 of the Sale of Goods Act 1893), whether implied by statute or common law or otherwise, are excluded.
6. Delivery of the Goods:
Unless otherwise stated in the Confirmation of Order, Ceramicx shall arrange for delivery of the goods to the Customer. The goods will be ready for dispatch on the Dispatch Date. The cost of collection and delivery of the Goods to the customer shall be borne by the Customer.
6.1 Goods in Transit
Before signing acceptance of your goods from the transport company please make an inspection of the packaging/pallet and check for any sign of damage. If there is obvious damage do not sign the delivery docket or in the case of severe damage do not accept the goods on your premises. Please be aware that when you sign for receipt of your goods you are stating that you are receiving them in perfect condition, unless you write “Goods Unchecked”. If you do not write “Goods Unchecked” and you find damage on further inspection of the goods, the transport company will not resume any responsibility and Ceramicx cannot consider any compensation or replacement.
7. Title and Risk
7.1 The Goods shall be at the Customer’s risk as and from their dispatch from the premises of Ceramicx.
7.2 Title to the goods shall not pass from Ceramicx until (i) the Customer has paid the price plus VAT in full, and (ii) no other sums are due from the Customer to Ceramicx.
7.3 Until title to the goods passes to the customer in accordance with Clause 7.2, the Customer shall hold the Goods and each of them on a fiduciary basis as bailee for Ceramicx. The Customer shall store the Goods (at no cost to Ceramicx) separately from all other goods in its possession and marked in such a way that they are clearly identified as Ceramicx property.
7.4 For so long as the Goods remain the property of Ceramicx, the Customer shall not use the goods in any manner and shall not, and shall not purport to, sell, charge, pledge, encumber or otherwise deal the Goods.
7.5 Ceramicx shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Goods has not passed from Ceramicx.
7.6 Until such time as property in the Goods passes from Ceramicx, the customer shall, upon request, deliver up the Goods to Ceramicx. If the Customer fails to do so Ceramicx and/ or its agents may enter upon any premises owned, occupied or controlled by the Customer where the Goods are situated and repossess the Goods.
8. Remedies of Customer
8.1 In the event of a breach by Ceramicx of any warranty in relation to the Goods, the Customers sole remedy shall be to reject the Goods to which such breach of warranty relates. Upon such a rejection of the Goods, Ceramicx shall refund to the Customer that part of the price which relates to such Goods to the extent that it has been paid by the Customer. Following such rejection and refund, the Customer shall have no further rights whatever in respect of the breach of warranty.
8.2 Without prejudice to Clause 8.1, (a) in no event shall Ceramicx have any liability whatever to the Customer in respect of any indirect or consequential loss and/ or expense (including loss of profit) which may be suffered by the customer arising out of a breach by Ceramicx of the Conditions; and (b) in no event shall the liability of Ceramicx to the Customer in respect of, or in relation to, or in connection with the Goods, whether arising in contract, tort or otherwise, exceed the amount (exclusive of VAT) actually paid by the Customer to Ceramicx in respect of the relevant Goods.
8.3 Transport damage, product defects, product non-conformances and products delivered not as described in the order confirmation should be notified to Ceramicx within 14 days of receipt of shipment. Ceramicx reserves the right to refuse any claims received after this period.
9. Law and Jurisdiction: All contracts between Ceramicx and the Customer in respect of, or in relation to, or in connection with, the Goods shall be governed by the laws of Ireland. For the benefit Ceramicx, the Customer hereby agrees that the courts of Ireland shall have jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with the Goods or their sale to and purchase by the Customer and, for such purposes, the Customer irrevocably submits to the jurisdiction of the courts of Ireland.
10. Force Majeure: If either Ceramicx or the Customer is affected by Force Majeure it shall forthwith notify the other party of the nature and extent thereof. Neither Ceramicx nor the Customer shall be deemed to be in breach of any of the Conditions, or otherwise be liable to the other by reason of any delay in performance, or non-performance, of any of its obligations hereunder, to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other party hereto; and the time for performance of that obligation shall be extended accordingly.
11. Partial Invalidity: If any of the Conditions is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect (a) the legality, validity or enforceability of any other of the Conditions, or (b) the legality, validity or enforceability in any other jurisdiction of that or any other Condition