Dairy Excellence is a division of Buitelaar Production Ltd company number 300157 and with a registered office at Pilsworth, Castledermot, Co. Kildare, Ireland, together with its successors and assigns ("The Seller") which expression shall include its holding company, subsidiaries and associates, and subsidiaries and associates of its holding company contracts with its customers ("The Customer") subject to and upon the following Terms and conditions of sale ("Terms") which shall exclusively govern all sales of The Seller's Goods and services (collectively and individually referred to as "Goods") notwithstanding any Terms or conditions , whether oral or written, or purported variations contained in any order or other correspondence submitted by The Customer to The Seller (whether before or after the making of the contract) save to the extent that such variation is expressly agreed in writing by a duly authorised officer of The Seller. Any reference in these Terms to 'you', 'your' and 'yours' and words of similar meaning are references to the business entity or person and any affiliate (as defined below) of such, and its successors and permitted assigns, doing business with The Seller
1.1 In these Terms, the following expressions shall have the following meanings: "affiliate" means, with respect to any natural or legal person, any other natural or legal person directly, or indirectly through one or more intermediaries, controlling, controlled by or under common control with such person; "business day" means a day (other than a Saturday, Sunday or public holiday) when banks in Dublin are open for business; "contract" means the contract between you and The Seller for the sale and purchase of products in accordance with these Terms; "insolvency event" means any of the events of insolvency as more particularly described in clause 12.2 of this agreement; "location" means your premises, the location set out in your order or such other location as The Seller may approve in writing from time to time; "order" means your order for the products as set out in any order made through The Seller' website, by telephone, by fax or email, through a seller representative and/or as set out in any order form you submit to The Seller; "products" means The Seller' Goods and, if applicable, any services that you agree to purchase; "website" means the website operated at www.dairyexcellence.com
1.2 Headings are for ease of reference only and do not form part of and shall not be construed as forming part of these Terms. Any reference in these Terms to any statute shall be construed as a reference to such statute as amended, extended, consolidated or re-enacted from time to time and references to a statutory provision shall extend to any subordinate legislation made under it.
2. Basis of contract
2.1 Unless otherwise agreed in writing by The Seller, these Terms govern any business relationship between you and The Seller and the making of any order by you. These Terms shall apply to all contracts for the sale of products by The Seller to you to the exclusion of all other Terms, including any Terms or conditions which you may purport to apply under any purchase order, confirmation of order or similar document or which may be implied by trade, custom, practice or course of dealing.
2.2 All orders shall be deemed to be an offer by you to purchase products pursuant to these Terms. The order shall only be deemed to be accepted when The Seller issues a written acceptance of the order, at which point the contract shall come into existence.
2.3 The contract constitutes the entire agreement between The Seller and you in respect of your order. You agree that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of The Seller, which is not set out in the contract.
2.4 Any samples, drawings, descriptive matter, or advertising produced by The Seller and any descriptions or illustrations contained in The Seller' websites, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the products described in them. They shall not form part of the contract or have contractual force.
2.5 A quotation for the products given by The Seller shall not constitute an offer. A quotation shall only be valid for thirty (30) days.
3.1 Any dates quoted for delivery of the products are approximates only and time for delivery shall not be of the essence. The Seller will not be liable to you for any loss or damage of whatsoever nature for late, short or non-delivery of the products.
3.2 The method of packaging and the choice of carrier of the products are at the sole discretion of The Seller.
3.3 You are deemed to have accepted the products on delivery to the location. All risk in and to the products shall pass to you on the delivery thereof to the location.
3.4 The Seller may execute orders in part from time to time, and payments for each part of an order so executed shall become due thirty (30) days from the date of invoice unless otherwise agreed in writing. A 3% discount is available if the invoice is paid in full ten (10) days from the date of the invoice.
3.5 You are not entitled to return any products to us without The Seller's prior express consent. No claim in respect of shortages of or damage to the products will be entertained by The Seller unless made in writing and received by The Seller within three (3) days from date of delivery of the products and in the case of damage accompanied with a photograph of the damage.
3.6 You are responsible for the proper disposal of any and all packaging in connection with the products.
4. Retention of title
4.1 Full legal and equitable property in the products shall remain with The Seller until The Seller has received payment in full for the products and any other Goods or services that The Seller has supplied to you in respect of which payment has become due.
4.2 Until full legal and equitable property in the products have passed to you in accordance with clause 4.1 you shall:
4.2.1 Hold the products on a fiduciary basis as The Seller's Bailee;
4.2.2 Store and display the products separately from all other Goods held by you so that they remain readily identifiable as The Seller' property;
4.2.3 Not remove, deface or obscure any identifying mark or packaging on or relating to the products;
4.2.4 Maintain the products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
4.2.5 Notify The Seller immediately if you become subject to any of the insolvency events; and
4.2.6 Give The Seller such information relating to the products as The Seller may require from time to time; but you may deal in the products in the ordinary course of your business.
4.3 At any time on demand and/or if at any stage you become subject to any insolvency event, or The Seller reasonably believes that any such insolvency event is about to happen and notifies you accordingly, then, provided that the products have not been resold, or irrevocably incorporated into another product, or consumed, and without limiting any other right or remedy The Seller may have, The Seller may at any time require you to deliver up the products and, if you fail to do so promptly, enter any of your premises or that of any third party where the products are located in order to recover them and you will permit access to same at all reasonable times during normal business hours for collection by The Seller.
5. Price and payment
5.1 Unless a definite price had been expressly agreed between you and The Seller for the execution of an order, The Seller's list price prevailing at the date of delivery shall apply.
5.2 Unless an alternative pricing arrangement has been expressly agreed in writing and signed by a duly authorised officer of The Seller, prices are exclusive of vat and any other taxes and duties due, and do not include the cost of transport and insurance which shall be paid by you. Time for payment shall be of the essence.
5.3 Accounts with overdue balances may be placed on credit hold. This means that no further products will be shipped until the account is brought into order. Credit facilities may be withdrawn without prior notice at the sole discretion of The Seller.
5.4 Unless an alternative currency and method of payment is agreed in writing by The Seller, payment shall be made in the currency specified on the invoice within 30 days of date of invoice. Payment shall not be treated as having been made until the amount in question has been irrevocably cleared and credited to The Seller's bank account. All payments shall be made in full without set-off, counterclaim, deduction or withholding. The Seller may at any time, without limiting any rights or remedies it may have, set-off any amount owing to it by you against any amount payable by you to The Seller on foot of any contract or arrangement between us.
5.5 The Seller will apply credit charges to the outstanding balance of overdue accounts at the rate of one and a quarter per cent per calendar month.
5.6 The rate of credit charge may be added to or varied from time to time by The Seller such variation to be notified by The Seller to you within a reasonable period. Payments made to The Seller by you shall be credited against the amount outstanding (whether principal, credit charge, or otherwise) in such manner as The Seller may determine in its absolute discretion.
6. Intellectual property rights
All intellectual property rights in or to the products are and shall remain the sole and exclusive property of The Seller and its licensees and all associated logos are trademarks of The Seller and all rights are reserved ("The Seller ip").
7.1 The Seller warrants that on delivery a for the period as defined by the best before dates of the products, the products shall:
7.1.1 Conform in all material respects with their description;
7.1.2 Be free from material defects in design, material and workmanship.
7.2 In the event of any breach of warranty by The Seller in connection with the products, your sole and exclusive remedy shall be, in the sole discretion of The Seller, either the replacement of the affected products or a refund of any money paid by you to The Seller for the affected products.
7.3 Other than the representations and warranties expressly provided under these Terms, The Seller expressly disclaims all warranties, conditions, representations, statements, Terms and provisions, whether express or implied by statute, common law, custom or trade, or otherwise in connection with these Terms to the maximum extent permissible by law. Without prejudice to the generality of the foregoing, all Terms implied pursuant to sections
13-15 Of the sale of Goods and supply of services act, 1893 and 1980 and section 39 of the sale of Goods and supply of services act, 1893 and 1980 are hereby excluded and the parties Terms & conditions of sale June 2014 agree that this is fair and reasonable. You confirm that you enter into these Terms in the course of trade.
8. Limitation of liability
8.1 Without prejudice to clause 8.3 the liability of The Seller arising out of or in any way connected with the purchase of the products whether in contract, tort, equity, statute or common law shall be the aggregate limited to the price paid to The Seller by you for the products under the contract, as defined by these Terms.
8.2 In no event shall The Seller be liable to you for any suits, claims, judgements, awards, expenses, costs, damages, proceedings or loss (including without limitation any loss of business, loss of revenue or loss of profits, loss of use of data, loss of savings or anticipated savings, loss of investments or loss of goodwill or reputation or any special, incidental, indirect, punitive or consequential loss or damages) of whatsoever nature howsoever arising or incurred by you or taken against you or any other person whether arising out of the provision of the products or otherwise.
8.3 Nothing in these Terms shall be construed as excluding or limiting either party's liability for death or personal injury caused by negligence or by fraud (including fraudulent misrepresentation).
9. Variation and cancellation of orders
Once accepted by The Seller, orders may not be varied or cancelled without The Seller's prior written consent. You will reimburse The Seller for all loss suffered by The Seller as a result of variations or cancellations of orders.
10.1 Each of us will keep in confidence any information of a confidential nature obtained under these Terms or during the course of our business relationship and will not disclose that information to any person (other than our employees who may need to know the information) without the prior written consent of the other.
10.2 This obligation does not apply to information (i) which has been published other than through a breach of these Terms; (ii) lawfully in the possession of the recipient before such disclosure took place as evidenced by its records; and (iii) obtained from a third party who is free to disclose it.
10.3 This clause will survive the fulfilment of any order and the termination of these Terms.
11. Data protection
11.1 To the extent that the information disclosed by you or information disclosed to The Seller is comprised of personal data within the meaning of the data protection acts 1988 and 2003 ("dpa"), such personal data may be used, processed or disclosed (including, without limitation, to and by any affiliate, agent or representative of the Terms & conditions of sale june 2014 seller and/or any third party service provider) for such purposes as may reasonably be required in connection with performance of these Terms and for the purpose of enabling The Seller to fulfil its duties and obligations pursuant to these Terms. Further, you represent and warrant that you have the authority to disclose any personal data, within the meaning of the dpa, which you disclose or otherwise provide to us regarding persons other than yourself. To the extent that the information disclosed by you to The Seller is comprised of personal data, you or the individual to whom the information relates are entitled (on payment of the appropriate fee not exceeding the statutory maximum from time to time) to access such personal data and to have any incorrect or misleading personal data amended or erased in accordance with the dpa. However, you acknowledge that the erasure of personal data held by The Seller may result in The Seller being unable to continue to provide the products and may result in termination of these Terms.
11.2 Without prejudice to clause 11.1, you acknowledge and agree that the personal data referred to in clause 11.1 above may be used, disclosed or processed by The Seller for any or all of the following purposes: to obtain advice from professional advisors; to communicate to third party investors or potential investors in the event of the sale, disposal, merger or transfer of the business of The Seller or in any other manner connected with the sale, disposal, merger or transfer of the business of The Seller; or to obtain financing for The Seller' business.
11.3 You acknowledge and agree that personal data provided by you may be transferred both within and outside of the European economic area for any and all of the reasons specified in this clause 11.
12. Termination and consequences of termination
12.1 Without prejudice to any other remedies it may have, The Seller may cancel any incomplete order and suspend all further deliveries under the contract or under any other contract between us without incurring any liability to you and/or terminate the contract forthwith on notice to you if you:
12.1.1 Fail to make any payment to The Seller when due;
12.1.2 Become subject to any insolvency event; or
12.1.3 Breach any provision of these Terms or any other agreement you may have with us and if such breach is capable of being remedied you fail to remedy that breach within thirty (30) days of written notice from us.
12.2 "Insolvency event" shall include where you:
(a) Suspend, or threaten to suspend, payment of your debts, or you are unable to pay your debts as they fall due or admit inability to pay your debts, or deemed unable to pay your debts within the meaning of section 214 of the companies act, 1963, or as having no reasonable prospect of so doing;
(b) Commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors;
(c) A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up, other than for the sole Terms & conditions of sale june 2014 purpose of a scheme for a solvent amalgamation with one or more other companies or your solvent reconstruction;
(d) Are subject of any bankruptcy petition or order;
(e) A creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
(f) An application is made to court, or an order is made, for the appointment of an examiner or an interim examiner;
(g) A person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
(h) Any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in this clause a) to clause 12.212.2 (0.00) Suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
(j) Your financial position deteriorates to such an extent that in The Seller' opinion your capability to adequately fulfil your obligations under these Terms has been placed in jeopardy. Or any event similar to any of the foregoing occurs in any jurisdiction.
12.3 Termination of the contract however arising shall not affect any of the parties' rights or remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the contract shall continue in full force and effect.
12.4 Upon termination of the contract:
12.4.1 You will pay The Seller all sums due and payable under the contract but unpaid at the time of termination; and
12.4.2 Each of us will return or destroy any confidential information of the other party in our possession, custody or control.
13. Force Majeure
The Seller shall not be under any liability of whatever kind for non-performance in the whole or in part of its obligations hereunder due to causes beyond the control of The Seller or beyond the control of The Seller's suppliers including but not limited to war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, your acts or those of a third party, failure or delay in transportation, unavailability of third party communication facilities, acts of any government or any agency or sub-division thereof, government regulations, judicial actions, labour disputes, strikes, embargoes, illness, accident, fire, explosion, flood, tempest or other acts of god, delay in delivery to The Seller or The Seller' suppliers or shortage of labour, fuel, raw materials or machinery or technical failure. Terms & conditions of sale june 2014
14.1 Failure by The Seller at any time or for any period, to require strict performance of any of these Terms shall not
Be construed as a waiver and shall in no way affect The Seller's right later to enforce these Terms.
14.2 The invalidity or unenforceability of any of the provisions of these Terms shall in no way affect the validity or enforceability of the remaining provisions.
14.3 The Seller may assign, transfer or novate these Terms or any of its rights or obligations hereunder. You agree to enter into such documents as The Seller may stipulate in order to effect such transfer, assignment or novation. You may not assign, transfer or novate any of your rights or obligations under these Terms.
14.4 If your business is a partnership or consists of two or more natural persons, each partner or person shall be jointly and severally liable under these Terms.
14.5 The Seller may appoint one or more agents or representatives for any of the purposes of these Terms.
14.6 These Terms will be binding upon and will inure to the benefit of you and The Seller and each of our respective successors and permitted assigns.
14.7 These Terms and all non-contractual obligations arising from or connected with them shall be governed by and construed in accordance with, and all disputes between the parties arising out of or in any way relating to these Terms or any disputes between the parties in any way connected with the subject matter of these Terms (whether contractual or non-contractual) shall be governed by, the laws of Ireland. Each of the parties to these Terms submit to the exclusive jurisdiction of the Irish courts. Nothing contained in this clause shall limit the right of The Seller to bring enforcement proceedings in another jurisdiction on foot of an Irish order or to seek interim, protective or provisional relief in the courts of another jurisdiction.
14.8 No amendment or addition to these Terms will be effective unless made or agreed by The Seller in writing.
14.9 Any notice under these Terms shall be given in writing by post or personal delivery or by prepaid registered mail or by facsimile with advice of transmission directed to the address of the party which set forth in these Terms (in respect of The Seller) and your order or to such other address as may be substituted by notice to the other party. If notice is sent by post, it will be treated as delivered two (2) business days after it has been posted.
15. Retention of title and passing of property to buyer
15.1 The property and the Goods shall remain in the name of The Seller until the company has received payment in full for the Goods.
15.2 The buyer has the right to dispose of the Goods in the course of his business as fiduciary agent of The Seller and to pass the good title to the Goods to his customer being a bona fide purchase for value without notice of The Seller's rights. In the event of such disposal the buyer has the fiduciary duty to The Seller to account to The Seller for the proceeds (which shall be kept separate and identifiable from the buyer's own monies) but may retain there from any excess of such proceeds over the amount outstanding under this or any other sale contract between them.
15.3 The buyer shall store the Goods separately so as to clearly show them to be the Goods of The Seller and The Seller shall have the right, without prejudice to the obligations of the buyer to purchase the Goods, to retake possession of the Goods ( and for that purpose to go upon any premises occupied by the buyer)
16 Credit charges on overdue accounts
The Seller will apply credit charges to the outstanding balance of overdue accounts at the rate of one and a quarter per cent per month accruing daily.
These Terms were last updated on 30 October 2017