Heterochem (Dist.) Limited
Terms and Conditions of Sale
1.1 Definitions:
1. Interpretation
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 may be amended as set out herein.
Contract: the contract between Heterochem and the Customer for the sale and purchase of the Products in accordance with these Conditions.
Customer: the person or firm who purchases the Products from Heterochem.
Delivery Date: the date for delivery of Products as notified to the Customer by Heterochem.
Delivery Location: the location specified for delivery of Products specified in an Order.
Heterochem: Heterochem (Dist.) Limited, a company incorporated and registered in Ireland with company number 110864 whose registered office is at Unit 49, Baldoyle Industrial Estate, Baldoyle Dublin 13, Ireland.
Manufacturer: the party who manufactures the Products.
Order: the Customer’s order for the Products, as set out in a purchase order form in a format acceptable to Heterochem.
Products: the Products (or any part of them) set out in the Order.
Specification: any specification for the Products that is agreed in writing by the Customer and Heterochem.
1.2 Interpretation:
(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 that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Heterochem issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 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.
2.5 Any samples, drawings, descriptive matter or advertising produced by Heterochem and any descriptions or illustrations contained in Heterochem’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Products given by Heterochem shall not constitute an offer.
3. Products
3.1 The Products are described in the Specification.
3.2 Heterochem reserves the right to amend the Specification, at any time, if required by any applicable statutory or regulatory requirements, or if the Manufacturer notifies a change to the Specification to Heterochem.
3.3 The Customer acknowledges that the Products are manufactured by the Manufacturer and not by Heterochem. The Specifications are set by the Manufacturer and tested by them prior to delivery. Heterochem does not provide any recommendation regarding Product suitability for any particular application. Heterochem does not warrant or confirm that the Products shall be as described in the Specification nor that the Products shall be fit for the purpose of application intended by the Customer.
4. Delivery
4.1 When the Products are ready for delivery, Heterochem shall, except where the circumstances set out in clause 4.5 apply, arrange for the delivery of the Products to the Delivery Location. Delivery of the Products may be effected in instalments.
4.2 Delivery is considered complete once the Products have been unloaded at the Delivery Location and the proof of delivery has been signed by the customer. Heterochem is not responsible for damages that may occur after signing of proof of delivery.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Unforeseen breakdowns, shortage of labour, power or raw materials, strikes, lock-outs, difficulties in providing means of transport, transport hold ups, official restraint and any Force Majeure Event (each a “Delaying Event”) shall relieve Heterochem from its obligation to supply the Products for the duration of the Delaying Event, with delivery to take place as soon as reasonably practicable after the conclusion of the Delaying Event.
4.4 Heterochem shall have sole discretion to choose the route and means of transport and the Customer shall bear all surcharges resulting from despatch by special route means or speed or in other than standard packaging or economical quantities.
4.5 Where requested by the Customer, Heterochem may agree for the Products to be collected by, or on behalf of, the Customer from Heterochem’s premises or another location specified by Heterochem. Where this is agreed by Heterochem, delivery is completed when the Products are loaded on the Customer’s carriage or other transport. Heterochem however reserves the right to refuse delivery / release of the Products if in Heterochem’s opinion the Customer’s carriage or other transport is unsuited for such transport and Heterochem shall have no liability for the failure to deliver / release. Release or delivery of goods does not, however, constitute an admission by Heterochem that a vehicle was inspected and Heterochem shall neither be responsible for the condition of such vehicle nor liable for any damage or loss resulting from such unsuitable vehicles or containers.
4.6 If Heterochem fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. Heterochem shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Heterochem with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.7 If the Customer fails to accept delivery of an Order on the specified Delivery Date, then, except where such failure or delay is caused by Heterochem’s failure to comply with its obligations under these Conditions:
(a) the Order shall be deemed to have been delivered at 9.00am on the Delivery Date; and
(b) Heterochem shall store the Order until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If by ten Business Days after the day on which Heterochem notified the Customer that the Products were ready for delivery the Customer has not accepted delivery of them, Heterochem may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.9 All returnable containers and pallets used in connection with deliveries shall remain the property of Heterochem.
5. Quality
5.1 Subject to clause 5.2, if:
(a) the Customer gives notice in writing to Heterochem within a reasonable time of discovery that some or all of the Products do not comply with the Specification or otherwise are not in accordance with the terms of the Contract;
(b) Heterochem is given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by Heterochem) returns such Products to Heterochem’s place of business, or to another location specified by Heterochem,
Heterochem shall, at its option, replace any defective Products, or refund the price of the defective Products in full.
5.2 Heterochem shall not be liable for the Products’ failure to comply with the Specification or for any allegation that the Products are otherwise not in accordance with the terms of the Contract in any of the following events:
(a) the Customer makes any further use of such Products after giving notice in accordance with clause 5.1;
(b) the defect arises because the Customer failed to follow the Product Safety Data Sheet/Heterochem’s oral or written instructions – as to the storage or use of the Products or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Heterochem or the Manufacturer following any specification or instruction supplied by the Customer; or
(d) the Customer alters or repairs such Products without the written consent of Heterochem.
5.3 Except as provided in this clause 5, Heterochem shall have no liability to the Customer in respect of the Products’ failure to comply with the Specification or in respect of any allegation that the Products are otherwise not in accordance with the terms of the Contract.
5.4 The terms implied by the Sale of Goods and Supply of Services Act 1980 are, to the fullest extent permitted by law, excluded from the Contract.
5.5 These Conditions shall apply to any repaired or replacement Products supplied by Heterochem.
6. Title and risk
6.1 The risk in the Products shall pass to the Customer on completion of delivery.
6.2 Title to the Products shall not pass to the Customer until Heterochem receives payment in full (in cash or cleared funds) for the Products and any other Products that Heterochem has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums.
6.3 Until title to the Products has passed to the Customer, the Customer shall:
(a) store the Products separately from all other Products held by the Customer so that they remain readily identifiable as Heterochem’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the Delivery Date;
(d) notify Heterochem immediately if it becomes subject to any of the events listed in clause 8.1; and
(e) give Heterochem such information relating to the Products as Heterochem may require from time to time.
6.4 If before title to the Products 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 Heterochem may have Heterochem may at any time:
(i) require the Customer to deliver up all Products 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 Products are stored in order to recover them.
7. Price and payment
7.1 The price of the Products shall be the price set out in the Order, together with any incidental expenses such as bank charges incurred in remittance and charges for release of shipping documents.
7.2 Heterochem may, by giving notice to the Customer at any time prior to delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
(a) any factor beyond Heterochem’s control (including foreign exchange fluctuations, freight, logistics, 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 Products ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Heterochem adequate or accurate information or instructions.
7.3 The Product prices are exclusive of amounts in respect of VAT and any other applicable taxes or charges. The Customer shall, on receipt of a valid VAT invoice from Heterochem, pay to Heterochem such additional amounts in respect of VAT as are chargeable on a supply of Products.
7.4 Heterochem shall be entitled to invoice the Customer for each Order on or at any time after delivery.
7.5 The Customer shall pay invoices in full within 30 days of receipt, unless otherwise agreed in writing between the parties. Payment shall be made to the bank account nominated or by cheque payable to Heterochem.
7.6 If the Customer fails to make any payment due to Heterochem under the Contract by the due date for payment, or Heterochem has any reasonable concerns regarding the Customer’s solvency or credit rating, without prejudice to any other right that it may have, Heterochem may require the invoice to be discharged prior to delivery.
7.7 If the Customer fails to make any payment due to Heterochem under the Contract by the due date for payment, then, without prejudice to any other right that Heterochem may have, the Customer shall pay interest on the overdue amount at the rate of 4% per annum. Unless otherwise specified in an agreed contract, the penalty rate is the ECB main refinancing rate plus 8 percentage points. 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. Heterochem may also withhold delivery of the Products until payment is received and require the Customer to pay all costs and expenses arising from the delayed delivery, including any storage costs or additional transport costs.
7.8 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). Heterochem 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 Heterochem to the Customer.
8. Termination
8.1 Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any undisputed amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the Contract and/or the Conditions;
(d) the other party becomes insolvent, or is unable to pay its debts, or enters (or appears may potentially be entered) into an examinership or liquidation process, or has a receiver appointed over all or any of its assets, or its financial position deteriorates to such an extent that in the other party’s opinion his financial capability to adequately fulfil his obligations under the Conditions has been placed in jeopardy; or
(e) any Force Majeure Event prevents the other party from performing its obligations under the Conditions for any continuous period of three months; or
(f) the Customer’s financial position deteriorates to such an extent that in Heterochem’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 On termination of the Contract for any reason the Customer shall immediately pay to Heterochem all of Heterochem’s outstanding unpaid invoices and interest.
8.3 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 this Contract that existed at or before the date of termination.
8.4 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 Heterochem’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;
(c) any matter in respect of which it would be unlawful for Heterochem to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) Heterochem 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; and
(b) Heterochem’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 the amount of €10,000.
10. Communications with Manufacturer
The Customer shall not, for the duration of the Contract and for a period of eighteen months after its termination, communicate directly with, or seek to and/or agree to contract directly with, the Manufacturer, or with any company owned and/or affiliated with the Manufacturer.
11. Force Majeure
Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(f) collapse of buildings, fire, explosion or accident; and
(g) interruption or failure of utility service.
11.2 Provided it has complied with clause 11.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Conditions by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
11.3 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
11.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 6 weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 2 weeks’ written notice to the Affected Party.
12. Severance
12.1 If any provision or part-provision of the Contract and/or the 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 and Conditions.
12.2 If any provision or part-provision of the Contract and/or the Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13. Multi-tiered dispute resolution procedure
13.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (Dispute) then except as expressly provided in the Conditions, the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Managing Director of Heterochem and Managing Director of the Customer shall attempt in good faith to resolve the Dispute;
(b) if the Managing Director of Heterochem and Managing Director of the Customer are for any reason unable to resolve the Dispute within 14 days of service of the Dispute Notice, the parties agree to enter into mediation in good faith to settle the Dispute. Unless otherwise agreed between the parties within 7 days of service of the Dispute Notice, the mediator shall be nominated by The Law Society of Ireland. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. Unless otherwise agreed between the parties, the mediation will start not later than 21 days after the date of the ADR notice.
13.2 If the Dispute is not resolved within 28 days after service of the ADR notice, or either party fails to participate or ceases to participate in the mediation before the expiry of that 28 day period, or the mediation terminates before the expiry of that 28 day period, the Dispute shall be finally resolved by the courts of Ireland in accordance with clause 20.
14. Further Assistance
14.1 At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Conditions.
15. Variation
15.1 No variation of the Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. Waiver
16.1 A waiver of any right or remedy under the Contract, the Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
16.2 A failure or delay by a party to exercise any right or remedy provided under the Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.3 A party that waives a right or remedy provided under the Contract, the Conditions or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
17. Notices
17.1 Any notice given to a party under or in connection with the Contract and/or the Conditions shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the following email addresses:
Heterochem: kim@heterochem.com
Customer: the email address from which the Customer ordinarily corresponds with Heterochem
17.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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.
(c) if sent by email, at the time the email is sent. If the email is sent after 5.30pm Irish time, it shall be deemed to have been received at 9.00am Irish time the following morning.
17.3 This clause does not apply to the service of any proceedings or other documents in any legal action.
18. Entire Agreement
18.1 The Contract and the Conditions constitute 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.
18.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty that is not set out in the Contract or the Conditions.
19. Governing law
19.1 This agreement 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 law of Ireland.
20. Jurisdiction
20.1 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 this agreement or its subject matter or formation.