1. General
1.1. In these conditions: “Event of Default” has the meaning set out in clause 8; “Seller” means O’Brien’s Wine Off-Licence and/or any and/or all its associated companies; “Customer” means the customer under a contract of sale to which these Terms and Conditions apply; “Products” means items sold under a contract of sale to which these Terms and Conditions apply; “Price List” means the price list relating to the Product as published by the Seller from time to time
1.2. These Terms and Conditions shall apply to all sales and no variation or purported variation (including any terms and conditions on the Customer’s order form), whether before or after the making of the contract shall have effect unless expressly agreed to in writing by the Seller.
1.3. The agreement with the Customer shall consist of
(a) These Terms and Conditions;
(b) Credit Account Application Form (if any);
(c) Product Order Form;
(d) Order Confirmation;
(e) Delivery Note;
(f) the Seller's invoice; (the “Agreement”) which together shall constitute the entire understanding between the parties relating to the Products.
1.4. Any typographical, clerical or other error or omission in any quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2. Product Availability
The Seller shall not be bound to supply the Products unless and until the Seller issues to the Customer an Order Confirmation confirming availability, scheduled delivery dates and price of the Product. The Order Confirmation shall take precedence over the Customer’s purchase order (if any).
3. Price
3.1. The prices of the Products shall be specified in the Seller’s price list published from time to time. The Seller reserves the right to change the prices of Products from time to time.
3.2. Prices shall be effective as of the date of the Order Confirmation.
3.3. In the event that the price in the Order Confirmation exceeds the price on the most recently published price list the Customer shall be entitled to cancel the order within seven days of receipt of the Order Confirmation unless the Customer has accepted the Products in the meantime.
3.4. Unless otherwise specified the price(s) quoted in the Order Confirmation shall exclude VAT, delivery and freight charges, which shall be levied and payable by the Customer.
4. Trade Discount
4.1. The minimum order which may be eligible for a trade discount shall be three cases x12 bottles (“Minimum Eligible Order”). The Seller may, in its sole discretion, offer a trade discount in respect of any Minimum Eligible Order.
4.2. Trade discounts shall only be applied where payment in made in full by the Customer by the due date for payment in accordance with clause 10 (Payment Terms).
4.3. In the event that the Customer has not paid in full by the due date for payment in accordance with clause 10 then any trade discount previously offered shall be withdrawn, and the Customer shall be liable for the full invoiced amount (before trade discount).
5. Delivery
5.1. All dates and times quoted for despatch or delivery shall be treated as estimates only. The Seller shall not be liable in any manner whatsoever for failure to despatch or deliver within the time quoted; 5.2. The Seller shall be entitled to make partial deliveries or deliveries by instalments and the Terms and Conditions shall apply to each partial delivery;
5.3. Deviations in quantity of the Products representing no more than 10 per cent by value from that stated in the Agreement shall not give the Customer any right to reject the Products or to claim damages and the Customer shall be obliged to accept and pay at the contract rate for the quantity of Products delivered.
5.4. Save as may otherwise be agreed in writing, if the Customer is notified that the Product is ready for despatch, and for any reason refuses or is unable to accept delivery thereof the Seller shall be entitled to invoice the Customer from such date. Where delivery of the Product shall be delayed by more than 14 days at the request of the Customer the Seller may, in its sole discretion, suspend the obligation to deliver the Products and allocate the Product to another customer and thereafter reschedule the delivery date. Where delivery of the Product shall be delayed by more than 28 days at the request or default of the Customer, the Seller may (if the Products are not allocated to another customer) charge for storage at the rate of 2% of the invoice value of the Product per month.
5.5. All claims for damage to or partial loss of Products in transit must be submitted by the Customer in writing to the Seller within 3 (three) days of delivery.
5.6. All claims for non-delivery of the whole of any order of Products must be submitted by the Customer in writing to the Seller within 7 (seven) days of receipt by the Customer of the Seller’s Invoice.
5.7. In the absence of notification of a claim in accordance with clauses 5.5or 5.6, the Products shall be deemed to have been delivered and accepted in conformity with the Agreement.
6. Carriage Delivery Risk
6.1. The risk of loss and/or damage to the Products shall pass to the Customer when the products are delivered at the Customer’s premises.
6.2. From when the risk of loss and damage to the Products passes to the Customer until the Seller is paid in full for the Products, the Customer shall
(a) indemnify and keep indemnified the Seller against all loss of and damage to the Products and against any reduction in the re-sale value thereof below the price to be paid therefore by the Customer;
(b) insure and keep insured the Products in an amount at least equal to the price to be paid therefore by the Customer; and
(c) hold upon trust for the Seller absolutely all proceeds of such insurance.
7. Title and Transfer of ownership
Prior to full payment of all sums due to the Seller:
7.1. Legal and beneficial title in the Product shall remain with the Seller and shall not pass to the Customer until the Seller has received payment in full of all sums due to the Seller (including any interest accruing and owing to the Seller).
7.2. If the Customer is in possession of the Products the Customer shall (subject to the specific powers set out in this clause to deal with, use or sell the Products) store or otherwise keep the Product in good condition on premises it has a right to occupy, separately from other products and items. The Products shall be adequately identified as being owned by the Seller and the Customer shall not remove, obscure or delete any mark placed on the Product by the Seller that may enable the Product or its ownership to be identified.
7.3. The Customer shall have power to deal with or use the Product as bailee of the Seller in the normal course of its business, to incorporate or combine the Products into or with other goods and to contract to dispose of the Product as the Sellers undisclosed agent by way of a bona fide sale at full market value.
7.4. The Customer may sell any of the Product, on condition that it shall hold all the proceeds of sale thereof as trustee for the Seller and where the Customer shall sell any of the Products it shall hold so much of the proceeds of sale thereof as relate to the Product as trustee for the Seller and shall (until payment of such proceeds to the Seller) hold the same to the order of the Seller.
7.5. On the occurrence of an Event of Default, all the Products shall be immediately delivered up to the Seller and the Seller by its servants or agents shall have the right during normal business hours to enter the lands or buildings of the Customer to take possession of and remove the Products. The authority of the Customer to sell the Products shall be immediately withdrawn without any further notice or act required of the Seller. All cost incurred by the Seller or its agent in repossessing the Products or in taking possession of the Products shall be borne by the Customer.
7.6. Nothing in this Clause shall confer on the Customer any right to return the Product without prior consent of the Seller or to refuse or delay payment.
8. Events of Default
The following events shall constitute an event of default:
8.1. any failure of the Customer to pay for the Products by the due date for payment;
8.2. any notice to the Customer or to the Seller that a receiver or manager of or over the business or property of the Customer is to be or has been appointed;
8.3. any notice to the Customer or the Seller that a petition to wind up the Customer is to be or has been presented;
8.4. any notice to the Customer or the Seller that a petition for the adjudication in bankruptcy of the Customer is to be or has been presented;
8.5. any decision by the Customer that the Customer intends to make an arrangement with its creditors;
8.6. the insolvency of the Customer;
8.7. any notice to the Customer or the Seller of an application for the appointment of an examiner to the Customer under the provisions of the Companies Act 2014;
8.8. any breach by the Customer of the terms of this Agreement.
9. Cancellation of Orders and Termination
9.1. On the occurrence of any Event of Default the Seller shall have the right (without prejudice to any other remedies), by written notice to the Customer, to cancel any uncompleted order and withhold or suspend delivery of further Products, to terminate this and/or any other agreement then subsisting between the Customer and the Seller and to demand payment forthwith of all sums due by the Customer to the Seller.
9.2. On such cancellation or termination by the Seller or for any reason by the Customer, the Customer shall indemnify the Seller against all loss, costs, profits (including the cost of all labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and the cancellation thereof.
9.3. The termination of the Agreement for whatever reason will be without prejudice to any rights and duties of either party accrued prior to termination.
10. Payment Terms
10.1. Other than as set out in clause 10.2, payment for the Products (including VAT and delivery charges) shall be made and received in advance of delivery, by debit card or credit card.
10.2. In the case of Customers paying by direct debit, payment for the Products shall be made not later than the last day of the month following the month in which the Seller’s Invoice is issued to the Customer.
10.3. Interest on overdue sums shall be payable on demand on a day to day basis at the annualised rate of 3% above Bank of Ireland plc’s base rate.
10.4. In default of payment of an invoice, and notwithstanding the terms of any other contract between the Seller and the Customer, the Seller may suspend or cancel delivery of any Products and may decline to accept any new orders.
10.5. The Seller shall have the right, on notice to the Customer, to change the credit terms provided hereunder at any time, in the event of default by the Customer of the payment terms.
10.6. The Customer shall not be entitled to set off sums due to the Seller under this Agreement against any other obligation of the Seller or claim by the Customer against the Seller arising in tort or contract or otherwise.
10.7. If at any time any sum of money becomes payable by the Seller to the Customer under or in connection with the contract or any breach thereof by the Seller, the Seller shall be entitled to set-off against such sum any amount then due, or which may at any time thereafter become due, to the Seller from the Customer under any contract, order or transaction between the Seller and the Customer.
11. Returns Policy
11.1. If any Products are found to be defective within three 3 (three) months from delivery of the Products, the Seller shall, at its option, replace, or issue a credit note for the price of the defective Product provided that: (a) the Seller has been notified of such defect within 3 (three) months of purchase; (b) the relevant Products are returned to the Seller at the cost of the Customer; (c) examination of the relevant Products by the Seller shall disclose to the Seller’s satisfaction that the Products are defective and in particular, that the Products have not been affected by misuse, neglect, accidental damage, improper storage by the Customer.
11.2. Clause 11.1 shall not apply to any defects due to or resulting from handling, abuse, misuse by the Customer of the Products or where damage to the Products has been caused by floods, fire or other acts of god.
11.3. The Customer may return unused Products representing up to a maximum of 25% of the total value of the Products ordered in any individual order and the Seller shall issue a credit note for the full price of such unused Products, provided that:
(a) The products are returned within 3 (three) months of delivery;
(b) The Products are current vintages;
(c) The Seller is satisfied that the Products (including foils, corks, labels, other packaging etc.) are in good, resalable condition; and
(d) The cost of collection by the Seller shall be borne by the Customer (and deducted from any credit due to the Customer).
12. Limitation of remedies and liability
12.1. The Seller warrants to the Customer that its Products are free of defects, under normal use. The Seller does not warrant the fitness of the Products for any particular purpose, even if that purpose is known to the Seller, and no such warranty is to be implied from the name or description under which the Products are sold. Save as aforesaid, all other warranties whether made orally or implied by circumstances, custom, contract, equity, statute or common law are hereby excluded with respect to the Products to the fullest extent permitted by law. Without prejudice to the generality of the foregoing, all terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1893 and all terms implied by the Sale of Goods and Supply of Services Act 1980 are hereby excluded to the extent that such is fair and reasonable. The Seller expressly disclaims any warranties not stated herein. For the avoidance of doubt, the Customer confirms that he/it enters into the Agreement in the course of his/its business and not as a consumer for the purposes of or within the meaning of the Sale of Goods and Supply of Services Act 1893 and 1980.
12.2. Subject to clause 12.1, the Seller shall under no circumstances whatsoever be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement for any loss of profits, sales, business, or revenue; loss of business opportunity; loss of anticipated savings; loss of goodwill; or any indirect or consequential loss suffered by the Customer.
12.3. The Seller’s total liability to the Customer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid for the Products.
13. Miscellaneous
13.1. Any notice or other communication to any party given under or in connection with this Agreement shall be in writing and shall (at the option of the party giving the notice) be: (a) Delivered by hand; and (b) Sent by prepaid post to the last known address of the party.
13.2. Any notice or communication referred to in 13.1 shall be deemed to have been served; (a) If delivered by hand, on delivery; or (b) If sent by pre-paid post, 72 hours after posting; provided that if, in accordance with this sub-clause, any such notice or other communication would otherwise be deemed to be given or made outside working hours, such notice or other communication shall be deemed to be given or be made at the start of working hours on the next succeeding business day
13.3. The Customer may not assign or transfer any rights or obligations herein without the prior written consent of the Seller.
13.4. The Seller may assign, license or subcontract all or any part of its rights or obligations under the Agreement.
13.5. The Seller’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
13.6. If any provision of these Terms and Conditions is held by a court or any competent authority to be invalid or unenforceable in whole or in part then that provision shall, to the extent required, be severed from the Terms and Conditions and shall be ineffective without as far as possible modifying any other provision or part of the Agreement and this shall not affect any other provision of the Agreement which shall so far as is reasonable possible remain in full force and effect.
13.7. This Agreement shall be governed by and construed in accordance with the laws of Ireland.