TERMS & CONDITIONS OF SALE KARORA LIMITED

 1.         Definitions                                                                                                                                                                                

In these Conditions:-

“The Seller”                         means Karora Limited;

“The Buyer”                        means the person, firm or Company that has requested any Goods;

“The Order”                         means The Buyer’s instructions to The Seller to supply the Goods;

“The Price”                          means the price for the Goods determined pursuant to Condition 3;

“The Contract”                   means the contract formed by the Seller’s acceptance of The Order;

“The Conditions”              means the standard terms and conditions of sale set out herein;

“IPRs”                                   means any intellectual property rights of any nature including without limit any and all patents, designs, copyright, know how, trade marks, service marks and trade names;

“The Goods”                       means any goods supplied or to be supplied by The Seller;

“Own Label Goods”        means Goods which include any label, logo, trademark or other mark of the Buyer.

“Delivery Point”               the place where the delivery of The Goods is to take place.

2.      Acceptance of Order

2.1   All Orders shall be deemed to be an offer and shall only be deemed accepted by The Seller upon the earlier of the issue of a written acknowledgment of order by The Seller or delivery of The Goods. Orders will be received in person, by phone, email or fax.

2.2   An Order is accepted by The Seller exclusively upon these Conditions of Sale and no other conditions terms or other representations whatever whether oral or in writing or otherwise shall be incorporated in The Contract unless agreed and signed in writing by both parties, in the manner set out in Condition 15

2.3   No Order which has been accepted by The Seller may be cancelled by The Buyer except with the agreement in writing of The Seller and on terms that The Buyer shall indemnify The Seller in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by The Seller directly or indirectly as a result of cancellation.

2.4   Unless otherwise agreed in writing, all orders shall include 1 or more cases (6 units) of Goods with a minimum quantity of 3 units of each product ordered.

2.5 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.

2.6   The quantity and description of the Goods shall be as set out in the Company’s acknowledgement of order.

3.      Price

3.1   Unless fixed prices have been agreed in writing the Goods shall be sold and invoiced at The Seller’s current prices at the date of dispatch and all prices are subject to alteration without notice.  Catalogues, price lists, and other advertising material are provided for illustrative purposes only.

3.2    Unless otherwise agreed in writing by Seller, the Seller will charge a delivery charge €5 for orders below €200 exclusive of VAT & free delivery for Orders above €200 exclusive of VAT.

3.3    The Price is exclusive of value added, purchase and any other taxes and duties (if any) and such costs shall be payable by and invoiced to The Buyer in addition to The Price when The Price is due.

4.      Delivery

4.1   Any delivery date specified by The Seller shall be deemed an estimate only and whilst The Seller will make all reasonable efforts to deliver the Goods on such estimated date, delivery cannot be guaranteed and The Seller shall not be responsible for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by the delay in delivery howsoever caused. Time of delivery of The Goods shall not be of the essence.

4.2   The Buyer shall not be entitled to refuse to accept the Goods because of late delivery.

4.3   Delivery to The Buyer shall be made to the premises of The Buyer as agreed and nominated in The Order.  Delivery to a carrier for the purpose of transmission to The Buyer shall be deemed to delivery to The Buyer.  Section 32(2) of the Sale of Goods Act 1893 shall not apply.

4.4   The Seller will endeavour to comply with reasonable requests by The Buyer for postponement of delivery but shall be under no obligation to do so.  Where delivery is postponed, otherwise than due to the default by The Seller, The Buyer shall pay all costs and expenses, including a reasonable charge for storage, insurance and transportation so occasioned, and payment for the Goods shall be made in accordance with these Conditions.

4.5   Unless otherwise stated in writing The Seller shall be entitled to make partial deliveries or deliveries by installments and these Conditions shall apply to each partial delivery.  Failure by The Buyer to take delivery of or to make payment in respect of any one or more installments of Goods delivered under The Contract shall entitle The Seller to treat The Contract as repudiated by The Buyer either in whole or in part.  Default by The Seller, howsoever caused, in respect of one or more installments shall not entitle The Buyer to terminate The Contract as a whole.

4.6    If The Seller agrees to permit The Buyer to collect The Goods from The Seller’s place of business then delivery shall be deemed to take place when The Seller notifies The Buyer that The Goods are ready for collection and unless otherwise agreed in writing by The Seller it is a condition of the Contract that The Buyer will collect The Goods within 7 days of such notice.

4.7    If The Seller agrees to hold a minimum quantity of Goods for a maximum period of 1 month pending receipt of orders for such Goods from the Buyer and the Buyer fails to purchase such minimum quantity of Goods then the Buyer shall indemnify the Seller in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Seller as a result of such failure.

4.8   If for any reason The Buyer fails to accept delivery of  any of The Goods when they are ready for delivery, or The Seller is unable to deliver The Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorizations:

(i)   risk in The Goods shall pass to The Buyer (including for loss or damage caused by The Seller’s negligence;

      (ii)  The Goods shall be deemed to have been delivered; and

         (iii) The Seller may store The Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including without limitation, storage and insurance).

4.9 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading The Goods.

4.10 If The Seller delivers to The Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by The Seller, The Buyer shall not be entitled to object to 4.10 If The Seller delivers to The Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by The Seller, The Buyer shall not be entitled to object to or reject The Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.

4,12 The quantity of any consignment of Goods as recorded by The Seller upon dispatch from the Seller’s place of business shall be conclusive evidence of the quantity received by

4.11 The Seller shall not be liable for any non-delivery of Goods (even if caused by The Seller’s negligence) unless The Buyer gives written notice to The Seller of the non-delivery within 2 days of the date when The Goods would in the ordinary course of events have been received.

4.12 Any liability of The Seller for non-delivery of The Goods shall be limited to replacing The Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

5.      Payment

5.1   Where any advance payment is required by The Seller, The Contract shall be conditional upon its receipt by way of cleared funds by The Seller.

5.2   The Seller shall be entitled to submit its invoice with its delivery advice note or at any time afterwards save that where delivery has been postponed at the request of or by the default of The Buyer then The Seller may submit its invoice at any time after the Goods are ready for delivery or would have been ready in the ordinary course but for the request or default on the part of The Buyer.

5.3   The Buyer shall pay the Price in accordance with pricelist presented or emailed by the Seller to the Buyer. Time of payment shall be of the essence and the Buyer agrees that all invoices shall be discharged in full within 30 days of receipt from the Seller, unless otherwise agreed in writing with the Seller.

5.4   Where Goods are delivered by installments The Seller may invoice each installment separately and The Buyer shall pay such invoices in accordance with these Conditions.

5.5          Where full payment has not been received by The Seller in accordance with Condition 5.3  The Seller shall (without prejudice to its other rights under The Contract) be entitled to charge interest on the amount outstanding at the rate of 8% per annum (that is based on the ECB rate of 1% plus the margin of 7%), which equates to a daily rate of 0.022% until The Price is paid in full.

5.6   Payment shall only be deemed received by The Seller from The Buyer upon receipt by The Seller of cleared funds.  Payment shall be made in full without any deduction, set off or abatement on any grounds.  The Seller may appropriate any payment made by The Buyer to any outstanding invoice.  The Seller may bring an action for the Price of The Goods even though the property in them may not have passed to The Buyer.

6.      Property and Risk in the Goods

6.1   Risk in the Goods shall pass to The Buyer on delivery. Section 20 of the Sale of Goods Act 1893 shall not apply.

6.2   Title to The Goods shall not pass to The Buyer until either full payment with cleared funds of all monies due from The Buyer to The Seller under all contracts between The Buyer and The Seller has been paid; or upon The Seller serving notice in writing on The Buyer specifying that Title to Goods has passed, Goods shall be kept separate from those of The Buyer and third parties and properly stored, protected and identified as The Seller’s property and any monies received in respect of the Goods including insurance monies received and the proceeds of any sub-sales shall be held in trust for The Seller. The Buyer shall be solely responsible for obtaining payment from its own purchasers.

6.3   Once payment becomes due, The Seller may while the owner of The Goods (and without prejudice to any other rights it may have) demand the immediate return of The Goods at any time and The Buyer must comply with (and bear the cost of) such demand immediately.  If The Buyer fails to return such Goods, The Seller or its successors in title, and their respective employees and agents, may enter The Buyer’s premises (with or without vehicles) during normal business hours to remove The Goods (the cost of which shall be borne by The Buyer) and/or may sell or otherwise deal in The Goods.  

6.4  The Buyer grants The Seller, its agents and employees an irrevocable licence at any time to enter any premises where The Goods are or may be stored in order to inspect them, or where The Buyer’s right to possession has terminated, to recover them.

6.5  Where The Seller is unable to determine whether any Goods are the goods in respect of which The Buyer’s right to possession has terminated, The Buyer shall be deemed to have sold all goods of the kind sold by The Seller to the Buyer in the order in which they were invoiced to The Buyer.

6.6  On termination of the Contract, howsoever caused, The Seller’s (but not The Buyer’s) rights contained in this clause shall remain in effect.

7.      Specifications

7.1   All descriptive matter, specifications and advertising issued by The Seller in respect of the Goods whether contained in The Seller’s promotional material or otherwise is hereby declared to be approximate only and they will not form part of the Contract.

7.2   Notwithstanding the provisions of Condition 16 The Seller reserves the right upon giving notice of its intention to The Buyer to make modifications to the Goods at any time before delivery provided that upon receiving such notice The Buyer shall (if the said modifications are material) be entitled to elect to terminate the contact.

7.3   Notwithstanding the words 'not checked' or 'unchecked' being written on the delivery note, The Buyer shall within 2 days of their arrival or anticipated date of arrival notify The Seller of any shortage, non-delivery or other loss or damage which is reasonably ascertained, and confirm such notification in writing or by telephone within 2 days of such arrival or anticipated date of arrival, and if no such written confirmation is received within the said period of 2 days the Goods will be deemed to have been supplied in accordance with The Order and to have been accepted by The Buyer.

7.4   Where The Buyer gives notice to The Seller by virtue of Condition 7.3 it shall

(i)     preserve the Goods intact and as delivered for a period of fourteen days after receipt by The Seller of the notification, during which period The Seller its agents or servants shall be at liberty to attend at The Buyer’s premises to investigate the complaint: and

(ii)   endorse a note of the said damage shortage or other loss on the carriers receipt or (should that be impracticable) send notice to The Seller of the damage shortage non-delivery or other loss within the period of time specified in Condition 7.3.

7.5   If The Buyer fails to comply with either of Conditions7.3 or 7.4 (I) it shall be deemed to have waived all or any claims actions or rights or remedies it may have in respect of the non-conformity of the Goods to The Order or their non-delivery.

7.6   If The Buyer fails to comply with Condition7.4 (ii) The Seller shall not be liable to The Buyer to the extent that The Seller is, by reason of The Buyers non compliance precluded from making recovery from the carrier for such of the said damage, non-delivery, shortage or other loss as may be the carriers responsibility.

7.7   If upon inspection by The Seller, the Goods are found by it to be damaged short or otherwise not in conformity with The Order, The Seller shall in its absolute discretion at its own expense replace or otherwise make good the same;  or take back the same and credit The Buyer with The Price.

7.8   Damage, shortage, loss or other non-conformity with The Order which is present only in a proportion of the Goods or (where delivery is made by installments) in some only of the installments shall entitle The Buyer to the remedies given by this Condition only in respect of that proportion of these installments.

8.      Seller’s Warranty

8.1   Subject to the provisions of this Condition, The Seller warrants that at the time of dispatch the Goods are of satisfactory quality and reasonably fit for their common purpose.

8.2   The warranty given in Condition 8.1 will not apply:

         i)            where the defect complained of arises from any specification supplied by the Buyer or arises from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing or whether relating without limit to the operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without the Company's approval;

         ii)          if the Price has not been paid by the due date for payment;

         iii)         unless The Buyer promptly notifies The Seller of any claim under the foregoing warranty as soon as it becomes or ought reasonably become aware of it; or

         iv)          unless The Buyer where practicable, returns the defective Goods or proportion of the Goods carriage paid to The Seller for examination and in any event, gives The Seller such opportunity to inspect and test the Goods as The Seller shall consider necessary.

8.3   All freight, carriage, postage, insurance and other costs incurred in returning the Goods to The Seller shall be paid by The Buyer.

8.4   The Seller’s liability under the foregoing warranties shall be limited to (at The Seller’s discretion) replacing or otherwise making good the defective Goods free of charge.

8.5   The provisions of Condition 8 shall apply to any refund or replacement or making good effected pursuant to Condition7.7 and 8.4.

9.      Exclusion of Liability

9.1   The Seller’s entire liability and The Buyer’s sole remedies in respect of any default in respect of the Goods shall be as set out in Conditions 7 and 8 above which shall not confer rights or remedies on The Buyer to which it would not otherwise be legally entitled.  Subject to Conditions 7 and 8 The Buyer’s remedies whether in contract or in tort (including negligence) against The Seller for any default shall be limited to damages which shall be subject to the limitations in this Condition 9.

9.2   Nothing in these Conditions shall exclude or limit the liability of the Seller for death or personal injury caused by the negligence of The Seller.

9.3   The Seller does not exclude any liability for a claim which could be brought successfully against The Seller under the Liability for Defective Products Act 1991  provided that any such claims are notified to The Seller forthwith and The Seller has the conduct of the action and the reasonable assistance of The Buyer.

9.4   Except as provided in Condition9.2 in no event shall The Seller be liable for the following loss or damage howsoever caused and even if foreseeable by or in contemplation of The Seller:-

 (i)    economic loss which shall include loss of profits, business, revenue, goodwill and anticipating savings;

(ii)   damages in respect of special, indirect or consequential loss or damage (other than direct physical damage to property caused by the negligence of The Seller or its employees); and/or

(iii)  any claim made against The Buyer by any other party.

9.5   The Seller’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the greater of the Price or the amount received by The Seller for the claim under its insurance policy covering such risks provided that nothing in this Condition 9.5 shall oblige The Seller to obtain any insurance or claim upon any insurance which it holds.  The Buyer acknowledges that delay in notifying any claim may prevent The Seller recovering any money under such policy.

9.6   The Buyer agrees it is fair and reasonable for The Seller to limit its liability under these Conditions and accordingly The Buyer agrees that except as expressly set forth in these Conditions all conditions or warranties expressed or implied statutory or otherwise (other than those which cannot be excluded by law) are hereby excluded. The Seller shall not be liable for any loss or damage caused by The Buyer’s failure to fulfil his responsibility under these Conditions or from any matter substantially within the control of The Buyer.

9.7   The parties agree that should any limitation or provision contained in this Condition 9 be held to be invalid under any applicable statute or rule of law and if The Seller thereby becomes liable to loss or damage which should otherwise have been excluded such liability shall be limited to the reasonable cost of remedying any defect or other matter constituting a breach of these conditions by The Seller provided that The Seller shall first be afforded the opportunity of itself carrying out such remedy or work and The Seller shall not under any circumstances be liable for any other loss injury or damage suffered by reason of such breach.

10.   Seller’s Literature - Bar Coding

10.1In the event of The Seller printing any bar codes on its products it will use its best endeavours to ensure that the printing of such bar codes complies with the rules of GS1 Ireland.  The Seller does not accept liability for any error or omission in such codes nor for any loss or damage or expense attributed to such error.

11.   Termination of The Contract by The Seller

11.1The Seller may terminate The Contract forthwith by written notice to The Buyer upon the happening of any of the following events:-

(i)     where full payment in respect of the Goods or any installment of the Goods has not been received by The Seller by the date specified as the date for payment in Condition 5.3;

(ii)   where The Buyer has failed to provide any commercial credit, bill of exchange or other security required by The Seller;

(iii)  where The Buyer, being an individual, commits any act of bankruptcy or being a corporation, makes any voluntary arrangements with its creditors (within the meaning of the insolvency provisions of the Companies Acts 1963-2005) ) or becomes subject to an administration order, goes into liquidation or a receiver is appointed over all or any of its assets or it ceases, or threatens to cease to carry on business or The Seller reasonably apprehends that any of the events mentioned in this Condition is likely to occur and notifies The Buyer accordingly;

(iv)  where The Buyer is in breach of any of its obligations under the Contract, which, if capable of remedy, The Buyer has not remedied within 30 days of receiving written notice for The Seller; or

(v)    where The Buyer is in breach of any other contract with The Seller

12.   Force Majeure

         The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials , provided that, if the event in question continues for a continuous period in excess of [60 ] days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.

 

        

 

13.   Confidentiality and Intellectual Property Rights in data

13.1Subject to Condition 13.2 all information supplied by The Seller to The Buyer (including, without limit drawings, descriptions, designs, documents technical information and data relating to The Seller’s customers, operations, trade secrets or business affairs) is supplied on the strict understanding that:-

         (a) it shall be kept confidential and shall not be published or disclosed to any third party except to the extent that any such information is or becomes public through no fault of the Buyer, or disclosure of the same is required by law or by any other governmental or other regulatory body or permitted by prior written consent of the Seller; and

         (b)the IPRs therein and in the Goods are vested in and shall remain the sole property of The Seller (if the Buyer shall in any way acquire any such rights then the Buyer shall immediately inform the Seller and shall forthwith take such steps as may be required by the Seller to assign such rights or vest such title in the Seller).

         In the event that an Order is not proceeded with, for whatever reason, The Buyer shall return all such information (and any copies made by it) to The Seller upon request.

13.2Any IPRs in any drawings, designs or other data acquired by The Seller on The Buyer’s behalf and at The Buyer’s expense shall be the property of The Buyer.  Any copyright in the same shall vest in, and remain with, The Buyer, subject to The Seller having a worldwide royalty free licence to use the same for the purposes of supplying Goods to The Buyer.

14.   Infringements

14.1Subject to Condition 9 hereof if The Goods or any part of them are manufactured by or on behalf of The Seller to the design or specification of The Buyer then The Seller shall indemnify The Buyer against all actions, claims, demands, costs, charges, liabilities and expenses of whatsoever nature suffered or incurred by The Seller arising out of any infringements or alleged infringement by The Seller of any third parties IPRs.  If any claim is brought or threatened against The Seller in respect of an infringement The Seller shall be entitled to suspend further deliveries of Goods to The Buyer.

14.2The indemnity referred to in the preceding Condition is given on condition that The Buyer shall notify The Seller forthwith of any action claim or demand brought or made against The Buyer or of any circumstances which may give rise to any such action claim or demand and shall allow The Seller to have the conduct of any action at law which may ensue with full discretion to settle or compromise the same and shall give all assistance as The Seller shall reasonably require for the purposes thereof.

15.   Variation

         After formation of The Contract any alterations, amplifications, modifications, limitations or additions thereto must be agreed between the parties and made in writing, signed by duly authorised representative of each party in the case of The Seller, such duly authorised representative, being either the Company Secretary or Director or any member of the Executive Committee.

16.   Notices

16.1Notices shall be made in writing and posted in a first class pre-paid envelope to The Buyer’s or The Seller’s address as shown on The Order or failing those to the address at which the one party reasonably believes the other to be carrying on business.

16.2A notice shall be deemed to have been given forty-eight hours after posting (or ninety-six hours after posting where the notice is sent from and or addressed to an address outside  Ireland).

16.3Notices may also be given by fax confirmed by first class post on the date of transmission.

17.   Construction

         The Condition headings hereto shall not affect the construction of these Conditions.

18.   Severability

18.1In the event of any provision of these Conditions being or becoming invalid void in whole or in part the other provisions of these Conditions shall remain fully valid and enforceable and void provisions shall, where appropriate, be replaced in accordance with the meaning and purpose of these Conditions.

19.   Waiver

         The granting by The Seller to The Buyer of time or any other indulgence forbearance or concession shall in no way prejudice or constitute a waive of The Seller’s entitlement to enforce any of its rights under The Contract except and to the extent that it shall constitute a variation of these conditions which has been made in accordance with Condition 15.

20.   Entire Agreement

         These Conditions together with any agreed variations in accordance with Condition 15 constitute the entire agreement between the parties with respect to all matters referred to herein and supersede all earlier warranties, representations or statements made by the parties (whether oral or in writing).  All other understandings, agreements, warranties, conditions, terms or representations whether express or implied (whether by statute, common law or otherwise) are excluded to the fullest extent permitted by law.

21.   Assignment

21.1               The Buyer shall not without the prior written consent of The Seller assign or transfer or purport to assign or transfer any contract to which these Conditions apply or be benefit thereof to any other person whatsoever.

21.2 The Seller may assign the Contract or any part of it to any person, firm or company.

22.   Proper Law

         The proper law of The Contract is Irish law and The Contract shall be construed and shall take effect in all respects in accordance with Irish law and the Buyer submits to the exclusive jurisdiction of the Irish Courts.

23.    Export Sales

          Notwithstanding any other Condition, where Goods are sold for export outside Ireland:

a)      the Seller shall be under no obligation to give notice under Section 32(3) of the Sales of Goods Act 1893;;

b)      Section 24 of the Sales of Goods and Supply of Services Act 1980 shall apply and notwithstanding Condition 9.2 all liabilities for injury or death arising directly from the use of the Goods are expressly excluded;

c)      Unless otherwise agreed in writing by the Seller the currency will be Euro and payment shall be by way of confirmed irrevocable letter of credit to be opened at a bank nominated by the Seller at the Buyer’s expense; and

d)      The Buyer shall be responsible for complying with any legislation or regulations governing the export of the Goods from Ireland and governing the importation of the Goods into the country of destination and for the payment of any duties or taxes on them.

24     General

          Each right of remedy of The Seller under the Contract is without prejudice to any other right or remedy of The Seller whether under the Contract or not.