Terms of sale
Terms and Conditions of Sale for Aqua Flow Products Limited T/A Domestic Pumps (the “Supplier”)
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Dublin are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
Consumer: a Customer who purchases goods and services for personal use outside their ordinary course of business.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and the Services in accordance with these Conditions.
Customer: the person or firm who purchases or agrees to purchase the Goods and/or the Services from the Supplier.
Delivery Date: the date specified by the Supplier when the Goods are to be delivered or the Services are to be provided, or the date on which delivery of the Goods takes place or the Services are provided, whichever is later.
Delivery Destination: the location specified in a Contract for the delivery of the Goods ordered by the Customer under that Contract.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in an Order.
Order: the Customer’s order for the Goods and/or the Services, as set out in the Customer’s purchase order form.
Services: the services (or any part of them) set out in an Order.
(a) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes emails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms or conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point and on which date the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and/or the Services referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 A quotation for the Goods and/or the Services given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.7 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
3. Goods and Services
3.1 The Goods and the Services are described in the Supplier’s catalogue.
4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the Order number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Goods to the Delivery Destination or such other location as the parties may agree at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.4 Delivery shall take place on or as close to the Delivery Date as is reasonably practicable in all the circumstances. For the avoidance of doubt, the Delivery Date is approximate only, and unless otherwise expressly agreed in writing by the Supplier, time is not of the essence for delivery.
4.5 No delay in the delivery of the Goods or the provision of the Services shall affect the price of the Goods or the Services or entitle the Customer to reject any delivery or any further instalment or part of the Order or any other order from the Supplier or to repudiate the Contract or the Order.
4.6 If, for any reason, the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, the Supplier may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses, including, without limitation, storage and insurance. This clause is without prejudice to any of the Supplier’s rights in relation to a failure by the Customer to take delivery of the Goods or pay for them in accordance with the terms of the Contract.
5.1 The Supplier warrants that on delivery, the Goods shall:
(a) be free from material defects in design, material and workmanship; and
(b) be of merchantable quality (within the meaning of the Sale of Goods Act 1893 (as amended); and
(c) be fit for any purpose held out by the Customer.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier within five Business Days of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1 (including shortages of the Goods or breakage of the Goods); and
(b) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The Supplier offers a 12 month workshop warranty whereby the Customer can bring the goods back to the Supplier’s workshop for repair, replacement or refund.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s instructions as to the storage, commissioning, installation, use and maintenance of the Goods as set out in writing on the invoice or good trade practice regarding the same; or any damage caused that is out of the suppliers control caused by any internal or external equipment where the goods have been installed that have a direct impact on the goods.
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer; or
(d) the Customer alters or repairs such Goods without the written consent of the Supplier.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 These Conditions shall apply to any repaired, reconditioned or replacement Goods supplied by the Supplier.
5.6 Nothing in these Conditions shall prejudice or affect the right of the Customer under the Sale of Goods Act 1893 (as amended) where the Customer is a Consumer.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 Until such time as title in the Goods passes to the Customer, the Customer shall hold the Goods as the fiduciary agent and bailee of the Supplier.
6.4 Any Goods repossessed by the Supplier may be resold on such terms as the Supplier may in its absolute discretion determine and the Customer shall remain liable to the Supplier for the difference between the net proceeds of such resale and all outstanding sums due to the Supplier in respect of the Goods and for all costs and expenses incurred by the Supplier in re-possessing, insuring and reselling same.
6.5 The Customer shall not pledge in any way, charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier. Without prejudice to the other rights of the Supplier, in the event that the Customer purports to do so then all sums whatever owing to the Supplier by the Customer shall immediately become due and payable.
6.6 Upon termination of the Contract, howsoever caused, the Supplier’s (but not the Customer’s) rights contained in this clause 6 shall remain in effect.
6.7 Except where the Supplier agrees in writing to accept return of the Goods sold under the Contract, the Supplier reserves the right to decline at its sole discretion requests from the Customer to return quantities of the Goods ordered but not utilised by the Customer for any reason.
6.8 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Price and payment
7.1 The price of the Goods and the Services shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery. All prices are quoted in Euro unless otherwise specified, and all payments shall be made in Euro unless otherwise agreed in writing by the Supplier.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods and/or the Services to reflect any increase in the cost of the Goods and/or the Services that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the Delivery Date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods and the Services excludes amounts in respect of value added tax (“VAT”) or any tax or duty relating to manufacture, transport, export, import, sale or delivery of the Goods or the provision of the Service which shall be due at the rate prevailing on the date of the Supplier’s invoice (“Tax”). The Customer shall additionally be liable to pay to the Supplier VAT and Tax (if any), subject to receipt of a valid VAT invoice.
7.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.5 The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount in accordance with the provisions of the European Communities (Late Payment in Commercial Transactions) Regulations 2002 at such rates and for such time as may be permitted thereunder. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.8 Time for payment shall be of the essence.
7.9 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, the Supplier shall be entitled to suspend or cancel deliveries of any Goods or the provision of any Services due to the Buyer.
7.10 For the avoidance of doubt, the rights and remedies of the Supplier set out in this clause 7 are cumulative, not exclusive, and the exercise of one thereof shall not deprive the Supplier of the right to exercise others.
8.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within seven Business Days of that party being notified in writing to do so; or
(b) the Customer takes any step or action in connection with its entering into liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
8.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(b), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 Business Days after being notified in writing to make such payment.
8.4 On termination of the Contract for any reason, the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest accrued thereon.
8.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract (which includes without limitation pure economic loss, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses ; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods and/or the Services.
10. Force majeure
Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for a continuous period of 20 Business Days , the party not affected may terminate the Contract by giving not less than seven Business Days’ written notice to the affected party.
11.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.3 Variation. No variation of the Contract shall be effective unless it is in writing and expressly agreed in writing by the Supplier.
11.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; nor
(b) prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severance. If any provision or part-provision of the Contract or these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract or these Conditions.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.7 Confidentiality. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs. For the purposes of this clause, “group” means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party. Each party may disclose the other party’s confidential information to its employees, officers, representatives or advisors who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisors to whom it discloses the other party’s confidential information comply with this clause 11.7. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of Ireland.
11.9 Jurisdiction. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.