Miele Ireland Limited - General Conditions of Sale
MIELE IRELAND LIMITED – Standard Conditions of Sale
(a) These Conditions of Sale shall apply to all contracts for sales by Miele Ireland Limited (“the Company”) of articles manufactured by the Company and all accessories thereto (hereinafter collectively referred to as “the Products”).
(b) No addition to or any variation or waiver of these conditions or any terms or conditions proferred by the Buyer or printed on the Buyer’s purchase order or in any correspondence between the Buyer and the Company shall have any effect unless expressly agreed in writing on behalf of the Company by a duly authorised employee of the Company.
(c) No servant or agent of the Company has any authority to give any warranty or to make any representation concerning the Products of the Company.
(d) Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or other information issued by the Company shall be subject to correction without any liability on the part of the Company.
(e) The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Company any necessary information relating to the products within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
(f) Any waiver of any part of these conditions, if agreed, shall not act as a waiver of the whole or any part of these conditions.
2. Basis of Sale
Products are not to be resold except to a member of the general public. Any breach of this warranty by the Buyer shall entitle the Company to rescind the order and sue the Buyer in damages for fraudulent misrepresentation.
(a) The Products shall be consigned at the most economical rate at the option of the Company by parcel post, road or rail carriage paid to the Buyer provided that cost incurred at the Buyer’s request (e.g. carriage by passenger train or other transport) shall be charged to the Buyer.
(b) The Company shall not be responsible for damage to any of the Products or loss of the Products or part thereof in transit unless the Buyer gives notice of a claim both to the Company and to the carrier:
(i) In the case of damage within three days after having received the Products before they are used: and
(ii) In the case of loss within ten days after having received the dispatch note and in the case of a claim made under paragraph (i) returns the Products to the Company in their original packaging.
(a) Unless otherwise expressly agreed in writing by the Company time shall not be of the essence in the performance of any order.
(b) Should delivery to the Buyer be prevented or delayed by act of God, war, civil commotion, government order, strikes, lock outs, fires, accident, shortage of labour, materials, fuel, power or transport or any other force majeure or other cause whatsoever beyond the Company’s control, the Company shall be entitled to an extension of time for delivery until the operation of the cause preventing or delaying the same has ceased, provided that if the Company cannot as a result of the above mentioned causes reasonably be expected to perform or to continue to perform the Contract the Company may by notice in writing cancel the order or so much thereof as shall remain unperformed. In such event the Buyer will not be entitled to any damages or compensation.
(c) Any date quoted for delivery of the goods is proximate only and the Company shall not be liable for any delay in delivery of the Products howsoever caused. The Products may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
(d) If the Company fails to deliver the goods for any reason other than any cause beyond the Company\s reasonable control or the Buyer’s fault, and the Company is accordingly liable to the Buyer, the Company’s liability shall be limited to the excess if any of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Products.
(e) If the Buyer fails to take delivery of the goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise then by reason of any cause beyond the Buyer’s reasonable control or by reason of the Company fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
(i) Store the Products until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
(ii) Sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
5. Alteration of Designs and Specifications
The Company reserves the right at any time to vary or alter any of the designs and specifications of the Products without notice.
(a) The prices of the Products shall be those on the Company’s price list in force at the date of delivery.
(b) Payment for the Products shall be strictly in accordance with the terms stated at the time of tender or if no tender has been made, the terms quoted on the invoice.
(c) The Company reserves the right to appropriate any payment or part payment of an invoice in settlement of the balance then outstanding under any former invoice rendered to the same Buyer and cash discounts shall only be allowed to the Buyer if all prior claims arising out of any earlier invoice shall have been fully satisfied.
(d) If the Buyer requests and the Company agrees to install the Products or any part of parts thereof the Company shall be entitled to charge separately for the installation time, including travelling time and fares.
(e) Unless specifically quoted as a fixed price for a specific period or agreed otherwise in writing all prices are subject to variation from time to time by the Company. VAT (or any other tax then applicable) will be charged at the rate ruling at the date of the invoice.
(a) The legal and equitable property in and title to the Products the subject of an order shall notwithstanding delivery to the Buyer not pass through the Buyer until such time as all sums due by the Buyer to the Company on that or any other account shall have been paid in full and payment received by the Company. In the event of the Products being inter-mixed with other Products not the Property of the Company the Buyer shall hold the Products of such inter-mixing upon trust for the Company until all such sums aforesaid have been paid and shall deliver same to the Company upon demand. Without prejudice to the foregoing the risk of any loss or damage or deterioration of the goods from any cause whatsoever shall be borne by the Buyer from the time of delivery. If the Buyer wrongfully fails to take delivery of the goods, at the time when the Company has tendered delivery of the Products the risk in the Products and all liability to third parties in respect thereof shall pass to the Buyer on delivery.
(b) Notwithstanding the provisions of paragraph (a) above the Buyer shall have the right to dispose of the Products in his ordinary course of business. The proceeds of such disposal shall be held on behalf of the Company.
(c) Once the Products have been disposed of by the Buyer pursuant to paragraph (b) above and until the Company has received full payment for the Products the Company shall have the right to take such action against the Buyer as it shall deem fit (including but not limited to the right to call upon the Buyer to assign to the Company any debt owed to the Buyer by his customer or customers in respect of such disposal.
(d) The insurable risk in the Products shall pass to the Buyer as soon as the Products are delivered to him or to his order and pending disposal the Buyer shall keep the Product insured in the amount of the price at which the Products are sold to the Buyer against all insurable risks.
(e) If the Buyer requests and the Company agrees to install the Products or any part or parts thereof title in the material supplied but not used in any such installation shall at all times as between the Buyer and the Company remain the property of the Company.
(f) If the payment for the Products is overdue or in the event that a receiver is appointed over the business of the Buyer or that a resolution is passed or petition presented for the liquidation of the Buyer or if the Buyer commits an act of bankruptcy then any representative of the Company shall have the right (without prejudice to any of its other rights) to enter the Buyer’s premises without notice in order to recover the Products (and this condition will constitute the authority of the Buyer to the Company to enter upon any other premises of the Buyer wheresoever the Products may be).
8. Guarantees, Warranties and Limitation of Liability
(a) Subject to the payment by the Buyer of all sums due to the Company and to compliance with these Conditions of Sale the Company will repay or (at the discretion of the Company) will replace free of charge any of the Products supplied by the Company or any part of parts thereof which are shown to the satisfaction of the Company to be defective due to faulty materials or workmanship within 12 months of the date of purchase or 6 months where the Products sold by the Company for domestic use have in the opinion of the Company been used for commercial purposes. Any replacement parts supplied under this condition will themselves be guaranteed for a period of 6 months from the date when they were supplied. Any part(s) removed will become the Property of the Company. In the case of defects becoming apparent in Products outside the Republic of Ireland the liability of the Company hereunder shall be restricted to the supply of spare parts free of charge.
(b) The Company shall not be liable for any claim other than under paragraph (a) hereof unless written notice of claim is communicated to the Company not later than 14 days after delivery of the Products the subject of the claim to the Buyer. Latent or inherent defects which could not be discovered on reasonable inspection of the Products must be notified to the Company within 14 days of their discovery.
(c) The Company shall not be liable for any indirect or consequential damage whatsoever to the Buyer or to others or to any property caused by or arising out of or in connection with the supply of Products in pursuance (of any order) or by any defect inherent, latent or otherwise which may be or which may subsequently develop in any of the Products supplied by the Company. In the case of damage arising directly from any breach of contract between the Company and the Buyer the Company’s liability whether in contract or in tort shall not in any event exceed the value of the Products the subject of such contract.
(d) The Buyer shall not in selling any of the Products supplied by the Company make any representation or give any warranty other than those contained in the current Conditions of Sale of the Company.
(e) The Company shall not be under any liability under paragraph (a) hereof for any of the Products in respect of which complaint has been made by the Buyer which have been altered or tampered with or have been installed or serviced otherwise than by the Company’s authorised agent.
(f) The Company shall be under no liability whatsoever to the Buyer if repairs of any kind are carried out by the Buyer or third parties without the express approval of the Company (which approval shall be deemed to have been given in the case of Products installed in ships where defects in such products become apparent whilst outside a Republic of Ireland port).
(g) Any repair work outside the scope or period of the guarantee shall be charged cash on delivery on the return Products.
(h) The obligations of the Company under sub-paragraph (a) hereof are in substitution for and exclude any warranty or condition whether given by statute or otherwise and whether express or implied insofar as any such warranty or condition may be validly excluded.
(i) The Company gives no guarantees as defined in Section 15 of the 1980 Sale of Goods Act in relation to the Products. In the event of the Products being sold with a guarantee from the original manufacturer thereof the Company.
(j) Subject to any other limitation or exclusion of liability expressed elsewhere in these Conditions, the Company’s liability for any claim whether in contract, tort (including negligence or breach of statutory
duty) or otherwise shall in no case succeed the price paid by the Buyer to the Company for the Products which gave rise to the claim.
(ii) Nothing in this section shall be taken as in any way limiting or excluding any liability which the Company may have to the Buyer under Section 2 of the Liability for Defective Products Act, 1991.
The Buyer shall not without the written consent of the Company export from the Republic of Ireland to a country which is not a member of the European Economic Community Products supplied to him by the
Company and shall take all practicable steps to secure that the Products so supplied are not exported from the Republic of Ireland to any such country to any other person, firm or company.
The Buyer shall not in any way alter, deface or remove any letters, numbers or other marks or markings which appear on or are attached to the Products supplied to him by the Company and shall use his best
endeavours to ensure that the same are not altered, defaced or removed to any other person, firm or company. Failure to comply with this condition relieves the Company from all liability under Condition 8 hereof.
(a) The Company shall be entitled to charge the Buyer for packing and shall not be obliged to accept any packing returned.
(b) The Company shall be entitled to charge the Buyer for the cost of crates delivered but shall on the return of such crates undamaged to the Company before due payment date refund the cost to the Buyer.
12. Delivery and Installation
Delivery if undertaken by the Company is so undertaken on the conditions that adequate labour and facilities will be made available by the Buyer at the Buyer’s expense to carry our prompt and safe unloading at the place at which delivery is requested by the Buyer and that it will not be necessary to dismantle the Products or any part or parts thereof in order to install them in the place requested by the Buyer. Anynecessary installation of, or alteration to any installation of gas, water, electricity, drainage pipes or connections are not part of the Company’s service and shall be the sole responsibility of the Buyer and the Buyer shall ensure that all regulations of the local electricity, gas, water boards and of any other relevant authority are fully complied with.
All orders accepted by the Company and any dispute or litigation arising therefrom shall be governed by the laws of the Republic of Ireland.
If any condition or any part of any condition is held by any Court or other competent authority to be void or unenforcable in whole or in part these conditions will continue to be valid as to all other provisions and the remainder of the affected provision.
Products correctly supplied to orders are non-returnable, except by previous agreement and these must be consigned carriage paid to the Company’s warehouse. Handling charge of 10% will be applicable.
Credit notes for returned Products cannot be issued unless the Company’s invoice number is quoted on all correspondence relating to the returns.
16. Payment Terms
As per Terms of Payment advised by Miele Ireland Limited on order.
17. Bankruptcy or Liquidation
In the event that the Buyer shall at any time become bankrupt or shall make any composition or arrangement with or for the benefit of his creditors or (being a limited company) any resolution or petition to wind up such company (other than for the purpose of amalgamation or reconstruction) shall be passed or presented or if a receiver of such company’s undertaking, property or assets or any part thereof shall be appointed, the Company shall have the right forthwith to determine any contract then subsisting and upon written notice of such determination being posted to the Buyer’s last known address any subsisting contracts shall be deemed to have been determined without prejudice to any claim or right the Company may otherwise make or exercise).