Terms and Conditions of Sale
- Definitions and interpretationIn these Conditions, unless the context otherwise requires, the following definitions shall apply:
“Company” means Fyffes Tropical (Ire) Ltd (company number: 4288833) whose registered office is at M1 Business park Courtlough, Balbriggan, Co. Dublin, K32 KV20
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) including any special terms and conditions agreed in writing between the Customer and the Company in accordance with clause 2.3.
“Contract” means the contract for the sale and purchase of the Goods.
“Customer” means the person whose Order for the Goods is accepted by the Company.
“Default” means any act, statement, omission, breach of obligation (whether expressed or implied, condition or warranty) contained in, precedent or collateral to the Contract, breach of duty under statute or at common law or negligence by or on the part of the Company in connection with or arising out of the subject matter of the Contract in respect of which the Company is legally liable to the Customer. A number of defaults which together result in or contribute to substantially the same loss or damage shall be treated as one Default occurring on the date of the occurrence of the last such default.
“Good Industry Practice” means the level of care, attention and process which would be ordinarily expected of a skilled and experienced person engaged in the same or materially similar business as that in which the party concerned is engaged in the same type of activity under the same or similar circumstances.
“Goods” means the goods (including any instalment of the goods) which the Company is to supply in accordance with the Conditions and shall include the Services where the context so requires.
“Services” means the services (if any) described in the Order which are to be provided in connection with the Goods;
“subsidiary” has the meaning set out in Section 7, Companies Act 2014
- 2. Basis of the sale
- 2.1 The Company shall sell and the Customer shall purchase the Goods in accordance with any telephone or written order of the Customer (the “Order”) which is accepted by the Company subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions whether express or implied subject to which any Order is made or purported to be made by the Customer.
- 2.2 Quotations issued to the Customer by the Company may be withdrawn or varied at any time and unless otherwise specified shall be automatically withdrawn after 24 hours. No binding contract shall in any event arise until the Order has been accepted by the Company either by:
- (a) confirmation in writing by the Company’s authorised representative; or
- (b) by delivery of the Goods.
- 2.3 No variation of these Conditions or purported variations contained in any Order or correspondence submitted by the Customer shall be binding unless agreed in writing between the authorised representative of the Company and the Customer
2.4 The Company’s employees or agents are not authorised to vary, add to or depart from the Conditions or make any representations concerning the Goods unless confirmed by the Company in writing.Any advice or recommendation given by the Company 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 the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 Any samples, illustrations or descriptive material produced or distributed by the Company shall not form part of the Contract and shall be treated as approximate and for guidance only unless specifically stated otherwise. The Customer shall take the Goods at its own risk as to their corresponding with the sample, illustration or descriptive material and as to the Goods quality, condition or fitness for purpose.
- 3. Orders and specifications
- 3.1 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order.
- 3.2 No Order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit) costs (including the costs of all labour and materials used) damages, charges and expenses incurred by the Company as a result of cancellation.
- 3.3 The Company reserves the right to sub-contract in fulfilment of the Order or any part of it.
- 4. Price of the Goods
- 4.1 The price of the Goods shall be the price stated on, or agreed at the time of, the Order.
- 4.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, currency fluctuations, increase in taxes and duties, any significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for Goods which is requested by the Customer, or any delay caused by instructions of the Customer or failure of the Customer to give the Company accurate information or instructions.
- 4.3 Where under the Contract any party agrees to pay to any other party any sum or to furnish to any other party consideration which (in either case) is consideration for a taxable supply that sum or consideration shall be exclusive of Value Added Tax payable on it and the recipient of the supply shall pay Value Added Tax in addition to any sum or consideration on receipt of a valid Value Added Tax invoice from the relevant party.
- 5. Payment terms
- 5.1 Subject to any special terms agreed in writing between the Buyer and the Company, the Customer shall pay the price of the Goods together with VAT by bank transfer to the Company’s bank account being AIB Bank, IBAN IE91 AIBK 9324 5035 1400 57 (or such other account as is notified to the Customer from time to time) within 21 days of the date of the invoice relating to the Goods. The time of payment shall be of the essence of the Contract. All payments shall be made in full without deduction in respect of any set-off or counterclaim.
- 5.2 The Company reserves the right at any time in its absolute discretion to revoke or vary any credit extended to the Customer including the credit period referred to in clause 5.1.
- 5.3 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
- (a) cancel the Contract or suspend the delivery or further deliveries to the Customer;
- (b) appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and
- (c) charge the Customer interest (both before and after any judgment) on the amount unpaid at the applicable statutory rate (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) until payment is made.
- 6. Delivery
- 6.1 Delivery of the Goods shall be made by the Customer collecting the Goods at the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.
- 6.2 The Company shall endeavour to deliver the Goods by the date quoted for delivery but such date is not guaranteed nor shall the time for delivery be of the essence unless previously agreed by the Company in writing.
- 6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
- 6.4 The Company shall not be liable for any loss, damage or expense resulting from delay in delivery of the Goods that is caused by a Force Majeure event as described in clause 10 or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- 6.5 If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then without prejudice to any other right or remedy available to the Company, the Company may:
- (a) store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
- (b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
- 7. Risk and property
- 7.1 Unless otherwise agreed in writing, risk of damage to or loss of the Goods, whether insurable or otherwise, shall pass to the Customer:
- (a) in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection; or
- (b) in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
- 7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Contract, the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Customer for which payment is then due.
- 7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall:
- (a) hold the Goods as the Company’s fiduciary agent and bailee;
- (b) keep the Goods separate from those of the Customer and third parties and properly stored, protected, insured and identified as the Company’s property; and
- (c) be entitled to resell or use the Goods in the ordinary course of its business (unless the Company revokes such entitlement in writing) subject to the Customer selling or using those Goods as have been longest in its possession.
- 7.4 Until such time as the property in the Goods passes to the Customer (and provided that the Goods are still in existence and have not been resold) the Company shall be entitled:
- (a) at anytime to enter upon any premises where the Goods are stored to inspect them; and
- (b) at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
- 7.5 The Customer shall not be entitled to pledge or create any lien, charge or encumbrance in any way by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so, all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
- 7.6 The provisions set out in this clause shall be without prejudice to the obligation of the Customer to purchase the Goods.
- 8. Notification of Claims
- 8.1 Any claim for non-delivering of any Goods shall be notified in writing by the Customer to theCompany within 24 hours of the specified delivery date agreed by the parties.
- 8.2 Any claim which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 24 hours from the date and time of delivery or (where the defect or failure was not apparent on reasonable inspection) taking into account the nature of the Goods within a reasonable time after discovery of the defect or failure.
- 8.3 Each claim made in accordance with clause 8.2 shall specify the date and place of purchase, the date on which the Goods were dispatched, the circumstances in which the alleged defect(s) became apparent and such further details as may be relevant to the claim or requested by the Company.
- 8.4 Any claim made in under clauses 8.1 or 8.2 shall be advised verbally and with written confirmation to be provided within 24 hours.
- 8.5 If delivery is not refused, and the Customer does not notify the Company of any claim in accordance with the provisions of this clause 8, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defects or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
- 8.6 The Customer shall have no right to reject any deliveries of Goods on the grounds of variation of quantity from the Order where such variation is not more than 10% or not less than 10% of the quantity of Goods ordered.
- 9. Warranties, liability and remedies
- 9.1 The Company warrants that the Goods will at the time of despatch:
- (a) correspond in all material respects with their description and any applicable specification; and
- (b) be free from material defects.
- 9.2 Subject to clause 9.3, if:
- (a) the Customer gives notice to the Supplier in accordance with clause 8.2, that some or all of the Goods do not comply with the warranty set out in clause 9.1;
- (b) the Company is given a reasonable opportunity of examining such Goods; and
- (c) the Customer (if asked to do so by the Company) returns such Goods to the Company’s premises at the Customer’s cost save to such extent as the Company may agree in writing in any particular case, the Company shall, at its option, replace the defective Goods.
- 9.3 The Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 9.1 (or any other warranty, condition or guarantee) if:
- (a) the Customer makes any further use of the Goods after giving notice in accordance with clause 8.2;
- (b) the defect is the result of natural wastage caused by the Customer’s unjustified delay in taking delivery of the Goods;
- (c) the Customer has accidentally damaged or neglected or used the Goods in such a way as to adversely affect their quality;
- (d) the defect is caused by the Customer’s wilful damage, negligence, or failure to follow the Company’s instructions (whether oral or in writing) as to storage of the Goods or, in the absence of such instructions, Good Industry Practice; or
- (e) the total price for the Goods has not been paid by the due date for payment.
- 9.4 In the event of there being any dispute as to whether or not the Goods are defective at the time of despatch or as to the cause of the defect the Company shall be entitled to inspect the Goods but the Company shall not be responsible for any loss occurring or for any damage to the Goods or to any other goods, occasioned by or in the case of such inspection.
- 9.5 Except as provided in this clause 9, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 9.1.
- 9.6 Subject as expressly provided in these Conditions all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
- 9.7 Liability and remedies
- 9.8 The Customer acknowledges that it has entered into the Contract in reliance only on the representations, warranties promises and terms contained in the Contract and, save as expressly set out in the Contract, the Company shall have no liability in respect of any other representation, warranty or promise made prior to the date of the Contract unless it was made fraudulently.
- 9.9 The Customer shall inform the Company of any Default and afford it reasonable opportunity to correct the Default.
- 9.10 In relation to any Default the Company will accept unlimited liability for:
- (a) death or personal injury caused by the negligence of the Company;
- (b) any breach of its obligation implied by Sale of Goods and Supply of Services Act 1980; and
- (c) anything else for which the Company cannot at law limit or exclude its liability.
- 9.11 Except as provided in sub-clause 9.10 the Company will not be liable for the following loss or damage arising directly or indirectly out of any Default and even if foreseeable by the Company:
- (a) administrative and overhead costs, loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of every description and any economic loss;
- (b) loss arising from any claim made against the Customer by any other person; or
- (c) loss or damage arising from the Customer’s failure to fulfil its responsibilities or any matter under the control of the Customer.
- 9.12 If any part of this clause 9 is found to be unenforceable by any court or competent authority or would be found to be unenforceable if it were interpreted or construed in a particular way, then, it is the parties express intention that the relevant wording should be interpreted or construed so as to avoid such a finding and that, in the event of such a finding, the remainder of the provision in question shall be interpreted or construed to give it full effect.
- 10. Force Majeure
- The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
- (a) Act of God, explosion, flood, tempest, fire or accident;
- (b) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or third parties);
- (c) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
- (d) import or export regulations or embargos;
- (e) difficulties in obtaining materials, labour, or supplies at commercially justifiable rates;
- (f) power failure or breakdown in machinery.
- 11. Indemnity
- The Customer shall indemnify and keep the Company indemnified against all costs, expenses, damages and demands incurred by the Company in respect of:
- (a) any alleged breach or infringement of any statute or regulation concerning the marketing and distribution of the Goods;
- (b) any alleged breach of any statute relating to trade descriptions or weights and measures where the Company relies or has relied upon information relating thereto or labels provided by the Customer, and the breach does not arise from the negligence or default of the Company; and
- (c) any claims arising and made under the Consumer Rights Act 2022 and which arise by reason of or in connection with a defect in the Goods, which defect is attributable to the compliance by the Company with the instructions given by the Customer.
- 12. Insolvency of Customer
- 12.1 This clause applies if:
- (a) the Customer makes any voluntary arrangement with its creditors or 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 purpose of a solvent amalgamation or reconstruction);
- (b) an encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of the Customer;
- (c) the Customer ceases, or threatens to cease, to carry on business; or
- (d) the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
- 12.2 If this clause applies 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 under the Contract without liability to the Customer, 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.
- 13. General
- 13.1 Subject to clause 8.4, any notice to either party under these Conditions shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at or sent by prepaid first class post, prepaid recorded delivery, telex or fax to the address of the party as notified in writing from time to time.
- 13.2 A waiver of any right or remedy under the Contract is effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No single or partial exercise or failure or delay in exercising any right, power or remedy by either party shall constitute a waiver by that party of, or impair or preclude any further exercise of that or any right, power or remedy arising under the Contract or otherwise.
- 13.3 To the extent that any provision of these Conditions is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of these Conditions, it shall not affect the enforceability of the remainder of these Conditions nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
- 13.4 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
- 13.5 The headings in these Conditions are for convenience only and shall not affect their interpretation.
- 13.6 This Contract and the Order set out the entire agreement and understanding between the parties and supersede all prior agreements, understandings or arrangements (whether oral or written) in respect of the subject matter of this Contract.
- 13.7 Set off The Company may at any time without notice to the Customer, set-off any liability of the Company to the Customer against any liability of the Customer to the Company however arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency of its denomination. Any exercise by the Company of its rights under this clause shall be without prejudice to any other rights or remedies available to the Company under these Conditions or otherwise.
- 13.8 Assignment and sub-contractingThe Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
- 13.9 Exclusion of third party rights
Unless expressly provided in this Contract, no term of this Contract is enforceable
- 14. Governing law and jurisdiction
- 14.1 These Conditions shall be governed by and construed in accordance with Irish Law and each of the parties irrevocably submits for all purposes in connection with these Conditions to the exclusive jurisdiction of the courts of Ireland.