The following terms are the standard Terms of Contract of Pronua concludes contracts for the supply of goods and services only subject to these terms and any person, company, business or organisation, (hereafter “the Customer”) seeking to be supplied with goods or services by Pronua accepts that these terms shall govern relations between Customer and Pronua to the exclusion of any other terms, including conditions, warranties or representations, written or oral, express or implied, even if contained in any of the Customer’s Documents which purports to provide that the customer’s own terms shall prevail. Only alterations to these Terms agreed in writing by Pronua shall be acceptable.
Any order or other purported acceptance of Pronua’s quotation made by the Customer shall be deemed to be an unqualified acceptance that these terms shall apply to any contract concluded between Pronua and the Customer for the supply of goods and services, and by dispatching the same the Customer waives his own terms.
3. REFUSAL OF ORDER
Pronua reserves the right at its sole discretion to accept or refuse any order placed by the Customer on the basis of quotations issued, and in the event of a refusal, no damages or expenses of any kind whatsoever shall be payable by Pronua to the Customer.
a) The price contained in Pronua’s quotation is based upon the cost to Pronua of labour, materials and transport at the date of such quotation, and in the event of an increase in such cost caused by any reason, Pronua shall be entitled to vary its prices accordingly, whether or not such increase was foreseeable.
b) Where the price included installation, it is based upon free and uninterrupted access to and possession of fully prepared working areas being made available to Pronua during normal working hours. In the event that such access and possession are not made available, or that the working areas are not duly prepared to Pronua’s requirements for immediate installation of the goods, without prejudice to any other right which Pronua may have, Pronua shall at its sole discretion be entitled to vary the price accordingly.
a) Unless otherwise stated in Pronua’s quotation all prices are strictly net and exclude V.A.T.,
b) At the sellers sole discretion the price shall be either:
(1) As indicated in your invoice as provided by the seller to the buyer in respect of the good supplied or
(2) The sellers quoted price which shall be binding upon the seller provided that the buyer shall accept the seller’s quotation in writing within 30 days.
The seller reserves the right to change the price in the event of a variation to the seller’s quotation.
At the seller’s sole discretion a deposit may be required. Time for payment for the goods shall be of the essence and will be stated on the invoice or other forms. If no time is stated then payment shall be due 30 days following the date of the invoice.
c) At the seller’s sole discretion:
(1)Payment shall be due on delivery of the goods or payment shall be due before delivery of the goods or payment for approved buyers shall be made by instalments in accordance with the seller’s payment schedule or payment for approved buyers shall be due 30 days following the date of any invoice.
(2)Payment will be made by cash or by cheque or by bank cheque or by credit card or by direct credit or by any other method as agreed between the buyer and the seller. VAT and any other taxes duties that may be applicable shall be added to the price except where expressly included in the price.
d) Should the customer default in payment for whatever reason on the, due date of any sum, without prejudice to any other right which Pronua may have, Pronua shall be entitled to be paid interest on such sum accruing from the date at 1.25% per month.
e) Where payment on any contract is not paid in full, or within the agreed credit terms, Pronua reserves the right to withdraw all guarantees and warranties given on its goods or services, without further notice.
6. TIME FOR DELIVERY
a) Any times stated or agreed by Pronua for delivery, dispatch or completion, either in its quotation or by any other means is not of the essence of any contract, either as to supply or as to installation. Such times are given by way of general information only, and in the event that delivery dispatch or completion is not made for any reason whatsoever at the times so stated, Pronua shall not be liable for any loss or damage whatsoever sustained by the Customer.
b) In the event that the Customer does not take delivery of the goods forthwith upon being notified by Pronua that manufacture has been completed, Pronua shall be entitled to charge and recover storage at the rate of 1.25% of the contract value per month, which shall be added to the price stated in Pronua’s quotation and shall be paid in accordance with Clause 5 of these Terms.
7. DELIVERY AND RISK
a) Unless otherwise stated in Pronua’s quotation the cost of delivery from Pronua’s works to the place for delivery stated in such quotation is included in the price but it shall be the responsibility of the Customer entirely at his own cost and at his own risk, to unload. Where the price includes installation it shall further be the responsibility of the Customer at his own cost to provide adequate dry and secure storage of the goods pending and during such installation. All risks in the goods shall pass to the Customer upon completion of unloading, at which time a delivery note will usually be handed to the Customer or his representative or left with the goods. Pronua’s liability to the Customer for missing or damaged goods shall be limited to any sums recoverable under a policy of insurance in respect of such risks, which may at Pronua’s discretion be maintained by Pronua. If no such sums are recoverable or if no such policy is maintained, there shall be no liability whatsoever on Pronua in respect of such goods.
b) In any event, and without prejudice to the foregoing, any claim relating to missing or damaged goods which ought to be revealed by a reasonably diligent examination, shall be notified in writing to Pronua and to any carrier involved, within 3 days of the receipt of any of the goods or part thereof by the Customer his servants or agents, and in default of such notification any such claim shall be absolutely barred.
c) At the seller’s sole discretion delivery of the goods shall take place when:
(1)The buyer takes possession of the goods at the seller’s address or
(2)The buyer takes possession of the goods at the buyer’s address (in the event that the goods are delivered by the seller or the seller’s nominated carrier) or
(3)The buyer’s nominated carrier takes possession of the goods in which event the carrier shall be deemed to be the buyer’s agent.
At the seller’s sole discretion the costs of delivery are:
(1)Included in the price or
(2)In addition to the price or
(3)For the buyer’s account
The failure of the seller to deliver the goods shall not entitle either party to terminate this contract. The seller shall not be liable for any loss or damage whatever due to failure by the seller to deliver the goods (or any of them) promptly or at all. If the buyer is for any reason unable to take delivery of the goods such that re-delivery of the goods is required, then the buyer shall be liable for the costs incurred by such re-delivery.
8. VARIATION OF TERMS
No variation of these terms or of any quotation or of any contract shall be valid unless agreed to in writing and signed by a Director, the Secretary or a duly appointed Senior Executive of Pronua.
Scaffolding and ladders will be supplied by the Customer without charge to Pronua, but in the event that Pronua is unable to perform installation due to the inadequacy or non-availability of scaffolding and ladders, ‘Pronua may at any time supply all necessary scaffolding and ladders from any source and add any extra cost thereby incurred to the price.
10. RESERVATION OF TITLE
The risk in the goods shall pass to the Customer upon delivery, but ownership thereof shall remain in Pronua until payment in full has been made (each order being considered as a whole). Before payment is made in full, the customer shall have power to resell the goods (as principal towards sub-purchaser but as agent as between sub-purchaser and Pronua) and Pronua shall be beneficially entitled to, and, the Customer shall be under fiduciary duty to account to Pronua for, the proceeds of resale and any claim thereto. If the Customer, not having made payment in full for the goods, mixes them with other goods or uses them in the manufacture of other products, the ownership of the other goods or products shall thereupon vest in Pronua as security for such payment, and accordingly the provisions set out in the immediately preceding sentence shall as far as appropriate apply to such other goods or products. Until such payment is made in full the Customer shall clearly identify the goods or the said other goods or products as being the property of Pronua. Pronua shall be entitled forthwith to recover and resell any or all of such goods or products to which Pronua has title hereunder and to enter upon the premises of the Customer or sub-purchaser, with such transport as may be necessary for that purpose if the Customer commits any default hereunder; which expression shall, without prejudice to the generality thereof, include failure to pay Pronua on the due date, the appointment of a receiver of the Customers business or the presentation of a petition to wind up the Customer’s business. Nothing herein shall entitle the Customer to return the goods or to refuse or delay payment for them.
11. QUALITY AND CONDITIONS OF GOODS
a) Pronua warrants that goods, parts or materials manufactured by them shall be of good materials and workmanship and that good workmanship will be employed in assembling parts or materials not manufactured by them. In any event, Pronua’s above liability with regard to the quality and condition of the goods shall be limited absolutely to the repair or replacement of goods parts or materials which do not comply with this warranty by reason of defects in materials and workmanship arising within 12 months of risk passing under Clause 7 of these Terms and to a maximum value of the original price of the goods, Save as aforesaid Pronua undertakes no liability whatsoever in regard to goods or materials whether manufactured by themselves or by any other person, and any condition or warranty that might otherwise be incorporated by reason of statute or common law is hereby expressly excluded.
b) Without prejudice to the foregoing, if called upon to do so by the Customer in writing, Pronua shall use its best endeavors to assign to the Customer the benefit of any warranty guarantee indemnify claim privilege or other right which Pronua may have in regard to the manufacturers or suppliers of any goods parts or materials not manufactured by Pronua and relating to the quality or condition of such goods parts or materials.
a) Pronua shall not in any circumstances whatsoever be liable to the Customer for any loss or damage involving any person properly or interest howsoever suffered by the Customer in connection with the installation, use, functioning or state of the goods, or in connection with anything done or omitted to be done by Pronua, its servants or agents, at the site nominated by the Customer.
b) The Customer shall indemnify Pronua against all actions claims or demands by third parties in tort or otherwise arising directly or indirectly in connection with any of the matters in sub-clause (a) aforesaid.
c) Without prejudice to the generality of these terms or the foregoing sub clauses, Pronua will in no circumstances whatsoever owe a liability to the customer in excess of the amount of the price hereunder.
13. IMPOSSIBILITY OF PERFORMANCE
Pronua shall be entitled by written notice to the Customer to cancel any contract concluded between Pronua and the Customer should Pronua be hindered or prevented by any cause beyond its reasonable control from performing the same, including a cause which renders performances commercially difficult, expensive or unprofitable.
Pronua shall be entitled to sub-contract or assign without consent all or any of its obligations hereunder.
15. FRESH INSTRUCTIONS
The Customer may prior to dispatch of the goods or any part thereof from Pronua’s Works, but in good time to enable Pronua to withhold such dispatch, give notice in writing to Pronua requesting that the goods shall be altered to meet the Customer’s requirements or that other or new arrangements be made as to the place of delivery of the goods. Pronua shall use its best endeavors to comply with any such reasonable request, provided always that in complying with any such request Pronua shall be entitled to vary delivery times and to vary the price accordingly, as well as to impose such other conditions as Pronua at its sole discretion may require.
Since the goods are manufactured to fulfill the Customer’s particular requirements, in the event that the Customer does not fulfill his obligations hereunder, Pronua may be unable to re-sell the goods or any part thereof at better than scrap value and for the purpose of calculating Pronua’s damages, Pronua shall owe no duty to seek to resell the same at better than scrap value.
Any warranty in relation to the goods as supplied is limited to that offered by the manufacturer of the said equipment and the seller shall not warrant in any way as to the suitability or otherwise of the goods and the seller shall not be bound by nor responsible for any term, condition, representation or warranty which is given by the manufacturer of the goods.
The seller may cancel these terms and conditions or cancel delivery of the goods at any time before the goods are delivered by giving written notice. On giving such notice the seller shall repay to the buyer any sums paid in respect of the price. The seller shall not be liable for any loss or damage whatever arising from any such cancellation.
In the event that the buyer cancels delivery of the goods, the buyer shall be liable for any loss incurred by the seller (including but not limited to any loss of profits) up to the time of cancellation.
19. SECURITY AND CHARGE
The buyer may be required by the seller to enter into a guarantee agreement with another nominated party by the seller in respect of the purchase of the goods. Any such guarantor will be liable to the seller if the buyer refuses, neglects and/ or is unable to pay the fees due on the due date.
20. DATA PROTECTION
The buyer and the guarantor (if separate to the buyer) irrevocably and unconditionally consents for the seller to collect, retain and use any information about the buyer for the purpose of assessing the buyers credit worthiness or marketing products and services to the buyer and the disclosed information about the buyer whether collected by the seller from the buyer directly or from any other source to any credit provider or any credit reported agency for the purpose of providing or obtaining a credit reference, debt collection or listing a default by the buyer (whether before or after judgement).
Pronua may without incurring further liability terminate the Contract by written notice if in its reasonable opinion the Customer is unable to make payment in accordance with the terms hereof. Without prejudice to any other right, which Pronua may have, upon such termination Pronua shall be entitled to receive payment on a quantum meruit basis in respect of work completed or in progress at the date of termination.
22. FURTHER SERVICES
The terms hereof shall apply mutatis mutandis in regard to any further services after completion of the contract, which Pronua may at its discretion perform.
Any communications or notices hereunder may be given or made by sending the same by ordinary pre-paid first class post; in the case of the Customer to his last known address; and in the case of Pronua to the address shown at the top of its quotation or upon its letter heading, and if so sent, shall be deemed to have been given or made on the date when posted.
Contract shall be governed by and Construed in accordance with Irish Law. The Irish courts shall have sole jurisdiction in this regard.