1. DEFINITIONS: In the context of these conditions: Buyer (also interchangeable with “Client”) refers to the person, partnership, firm, organisation or company who engages the services of the Supplier. The term Buyer also refers to its employees, subsidiary and associated companies and such agents as it may from time to time authorise to act on its behalf. In the application of the contract of bailment Buyer is interchangeable with the term Bailee (and so mean one and the same).Supplier refers to Tech Village, its agents, employees and sub-contractors of any tier; and in the context of bailment is interchangeable with the term Bailor. The Contract or Agreement means the contract between the Buyer and the Supplier consisting of such documents as the: invitation by the buyer to quote, specifications issued, special conditions, purchase order, the sales order, these Conditions, agreed exceptions, contract particulars relating to term; scope; costs; log-book templates and any other documents specified in the purchase or sales order or referenced as being part of the Contract with the written agreement of the parties including such provisions as standard operating procedures or new process documentation. Should there be any inconsistency between the documents; the printed copy of the purchase order (if issued by the Buyer) and sales order (as issued by the Supplier) and the signed copy of this document of “General Terms and Conditions covering the Supply of Goods & Services” will have priority over all other considerations including those relating to trade customs/ practices or any oral arrangement(s). Any other document condition statement stipulation or representation not specified in writing as being part of the Contract and agreed to and signed by both Buyer and Supplier shall not be part of the Contract and is hereby excluded save that any liability for fraud or fraudulent misrepresentation is not thereby excluded or limited. In the Contract reference to the singular includes reference to the plural and vice versa and reference to any gender includes a reference to all other genders; references to firm, company, person, organisation are interchangeable in reference to the description of the Buyer. A Contract may cover specific delivery of goods; installation of equipment; or some other service within the capability of the Supplier. Such Contracts may not have a specific term but instead rely on a series of mutually agreed completion dates. Where the Contract concerns ongoing service requirements over a period of time such maintenance agreements will specify a term whereby the Supplier agrees to cover a specific need of the Buyer whether it be for 6 months, a year, or other time period. Maintenance agreements may instead be agreed whereby the Supplier agrees to provide a block of hours service to the Buyer. The Buyer pays the maintenance fee up front to retain the services of the Supplier no matter how the period of cover is arranged. The date(s) of delivery of the goods and/or commencement and performance of the services shall be those specified in the Contract, or as otherwise agreed in writing by the Supplier and the Buyer. The Supplier will only enter into a sales agreement with another business and assumes the Buyer is a trading business. All sales either verbal, offline or online are business to business transactions.

 

  1. INTERPRETATION: These conditions apply to all present and future orders and/or contracts for the sale of goods and provision of services by the Supplier to the exclusion of any terms and conditions stipulated by the Buyer or any other agreement. The Supplier’s employees, agents or sub-contractors are not authorized to make any representations concerning the goods or services unless confirmed by a Director of the Supplier’s business in writing. The Buyer acknowledges that it does not rely upon and waives any claim for breach of any representation which is not so confirmed. Quotations are not offers by the Supplier but only invitations to treat. Quotations are valid for 14 days only. The offer proper shall be contained in the Sales Order and Contract terms. Acceptance is deemed to have occurred once the contract has been agreed and signed by both the Buyer and Supplier. A signature is required from a Director or Senior Manager/ Official representing the Buyer and the Supplier (or by their properly nominated agents as confirmed in writing by a Director/ Manager). Documentation should always be on headed paper. Once signed the contract is fully enforceable. Documents and correspondence (letter of notification, etc) should reference and be addressed to a nominated party at an agreed office location and sent by registered post unless documents can be passed in person between the principals. It is also prudent to send copies by email to each other.

 

  1. WAYS OF WORKING: As also outlined in the Supplier’s Ways of Working document, it is recommended that the Buyer provide clear instructions, technical details and specifications, site rules etc which properly address the work that is being asked of the Supplier and the working environment in which the Supplier is being asked to operate. In the knowledge that quotations and estimates are approximate based on information at the time; that additional factors and issues present themselves during problem solving; or in the absence of comprehensive directions and details provided by the Buyer; or as new circumstances and challenges present themselves, the Supplier shall operate in good faith and exercise his judgment as to the best way to fulfill the overall objective of the Contract. The Supplier shall be recompensed in full for any additional work undertaken to successfully complete tasks necessary in fulfillment of the Contract. The Supplier will continue to meet the needs of the Buyer by pursuing the most effective and efficient solution with attention to quality, delivery and cost. Any such revision of the sales order and prices contained therein shall be properly communicated in advance to the Buyer before the Supplier proceeds to complete the execution of the Contract.

 

  1. TITLE + RISK: The risk in the Goods shall remain with the Supplier only until delivery has been completed at the point specified by the Buyer. Title in the goods and workmanship as provided by the Supplier will pass to the Buyer only when payment in full has been made against the relevant invoice. Until such payment the relationship of Bailor and Bailee shall subsist between the parties, i.e. a contract of bailment will operate. Where the workmanship is difficult to retract (example: intricate connections and set-ups in relation to networks and information transfer) the value of all efforts expended by the Supplier on the Buyers behalf will still be enforceable as a debt and the Supplier may seek redress through the Courts for all goods and the value of completed workmanship and work in progress that cannot be physically recovered. The Supplier will not be impeded by the Buyer in seeking the return of goods and services that have not been fully paid for and by signing these terms the Buyer authorises that the Supplier or his agents can enter the Buyer’s premises to recover these items. The Bailor may sue the Bailee for detinue for failure to return these goods. During the period before title passes to the Buyer, the Bailee is under the obligation to securely store and keep the goods separate and clearly identified as belonging to the Bailor. If the Buyer resells the goods in the ordinary course of business he shall hold the proceeds of such sales in trust for the Supplier in a separate bank account under the Supplier’s name.

 

  1. DELIVERY: Delivery will be to the address nominated by the Buyer in its order. Any time or date given by the Supplier for delivery is intended as an estimate only and he shall not be liable for failure to deliver within the time quoted. In the event of the Buyer failing to accept delivery of goods ordered at the agreed time and place he shall pay any re-delivery or storage charges incurred by the Supplier. Any claim for damaged goods must be received by the Supplier within 48 hours of delivery. The Buyer is required to sign delivery dockets and keep proof of delivery receipts at its place of business to match against orders and so expedite payment to the Supplier

 

  1. PAYMENT :Innovations in Irish Legislation to promote entrepreneurial business growth and protect the cash-flow of SMEs, means that where credit is extended, payment to Suppliers for goods and services rendered should ordinarily be completed no later than 14 days from the date of invoice. In the absence of agreed exceptions obtained in writing, the Buyer promises to abide by the Supplier’s standard payment terms of 14 days payment in full from date of invoice, and that failure to fully discharge the debt by the due date allows the Supplier to exercise the right to levy a 5% compound interest penalty per week (based on 5% of the full value of goods and services invoiced before tax).Value added tax where applicable shall be shown separately on all invoices. If the Buyer does not adhere to agreed call offs the Supplier reserves the right to amend the price of the goods delivered in accordance with the quantities delivered. The Supplier reserves the right at any time before delivery to adjust the price to take account of any increase in the cost of materials. Liability for payment arises upon delivery or completion; however where credit terms have not been agreed cash on delivery or advance payment may be required, where service contracts operate payment is required up front before the period of cover. The Supplier may at its absolute discretion withdraw credit facilities and upon notification of such withdrawal to the Buyer payment for goods delivered or services rendered will become immediately due. The Buyer further agrees that in the event of goods not being readily available the Supplier may substitute the latest equivalent goods, which are readily available in furtherance of completing the work in the spirit of the Agreement.

 

  1. ASSIGNMENT AND SUB-CONTRACTING: The Supplier can assign or sub-contract the Contract or any part thereof.

 

  1. INSURANCE: The Buyer will maintain throughout the performance of the contract and during any statutory limitation period applicable such insurance’s so as to protect buildings, offices, equipment, data and all items under the Buyer’s control or in the Buyer’s possession from damage or loss. The Supplier will not be liable for direct damage (save for gross negligence) nor for incidental or indirect damage or be held accountable for other events that occur at the Buyer’s office(s) during the time the Supplier or his agents are engaged to perform duties there. The Buyer, as owner or occupier, of the office(s) has a duty of care to ensure the environment in which the Supplier is being asked to work or deliver goods and services to, is safe and free from hazards. The Buyer will maintain insurance in respect of: liability for death of or injury to the Supplier (including third parties engaged by the Supplier); or for losses or damage suffered by them in the course of their work on account of obstacles, hazards or other difficulties encountered at the Buyer’s office(s). Owing to provisions concerning goods under bailment, the Buyer has a duty of care to insure the full sales value of all the Suppliers goods & work under the Buyer’s control (Buyer as Bailee) in case of possible damage loss or theft. This indemnity provision protects the Supplier (as Bailor) until such time title in the property or work transfers wholly to the Buyer (the Contract of Bailment ends on full payment of debt). An insurance policy taken out to this end must name the Supplier as beneficiary. Should the Buyer neglect to provide such cover he will nevertheless be liable still to the Supplier for the full sales value of the goods & work. The Supplier is not under any obligation to check the details of the Buyers insurance cover to ensure such safeguards are in place. In the event of the supplier collecting any goods to repair off site, te client must ensure that there is sufficient insurance to cover the costs of all items. The supplier will not insure against such items in the event of theft, loss or damage to property.

 

  1. WARRANTY AND LIABILITY: In accordance with the provisions of the Sales of Goods Acts and other Consumer Protection legislation, Manufacturer’s generally warrant that their goods will correspond with their specification and will be free from defects in materials and workmanship for a period of 12 months from the date of purchase by the Buyer. The Buyer must check the particular warranty conditions set out by the Manufacturer in each case and abide by their instructions. The Buyer’s warranty or guarantee in respect of the quality of goods is with the Equipment Manufacturer. The Supplier and its equipment providers shall be under no liability in respect of any defect arising from wear and tear, willful damage, negligence, abnormal working conditions, and failure to follow manufacturer’s instructions, misuse or alteration or repair to the goods without the Manufacturer’s explicit approval. The Supplier and his equipment suppliers shall be under no liability whatsoever if the total price for the goods has not been paid by the Buyer on the due date to the Supplier against the relevant invoice. In the event of a valid claim by the Buyer the Supplier (or Equipment Manufacturer) shall be entitled to repair or replace the goods (or the part in question) or, at the Supplier’s sole discretion, refund to the Buyer the price of the goods (or proportionate part of the price), but the Supplier and Equipment Manufacturer shall have no further liability to the Buyer. The Buyer acknowledges that the value of the goods may fluctuate after the date of delivery and any refund or credit note awarded by the Supplier or Manufacturer in respect of the goods shall be made at the sale price at the date of the return of the goods. The Supplier shall not be liable for any loss suffered, whether direct or otherwise, by the Buyer in connection with the operational failure of any item of the equipment except in so far as the Buyer incurs direct loss as a result of the negligent act or omission by the Supplier. The Buyer shall indemnity the Supplier against the consequences of all claims made against the Supplier by any third party in respect of defective goods or services supplied by the Supplier to the Buyer in so far as any such claim exceeds that which the Buyer could have successfully claimed against the Supplier or Manufacturer. In respect of services provided by the Supplier in respect of wider project based work within his capability and specified in the Agreement any warranty and guarantee will only be served (if at all) on a unique and separate basis to each Client as a particular of that specific agreement and reference must be made to that document. It is wholly the Buyer’s responsibility to back up all files and data and provide suitable contingency cover against any risk of equipment failure during and after the period of time it takes the Supplier to perform duties pursuant to the work covered by the Agreement. The Supplier is not liable for any form of consequential loss. The Buyer accepts that the limitations and exclusions set out in these Conditions are reasonable and acknowledges that the Contract having been freely and openly negotiated in the knowledge that the Supplier’s liability is to be limited in accordance with these Conditions and that a higher price would be payable but for these limitations.

 

  1. WAIVER Any indulgence granted by the Supplier to the Buyer or any waiver by the Supplier of its rights under these Conditions in respect of any particular transaction or series of transactions shall be recorded and will not be deemed an agreement to confer the same indulgence or waiver of the Supplier’s right in respect of any further transaction(s).

 

  1. FORCE MAJEURE: The Supplier shall not be liable in respect of any failure to supply goods or services where this is due to an act of God or any other reason beyond the control of the Supplier. In the case of hosting, the supplier passes is a reseller of a product provided by another party, and shall not be liable for any downtime or failure loss.

 

  1. NOTICE: Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and sent by registered post to its principle place of business or other agreed office.

 

  1. HEALTH & SAFETY: The Buyer has the highest duty of care to ensure that all equipment within the Buyers control and the working environment in which the Supplier is being asked to operate is clean and safe, conforms to relevant safety legislation, and that all potential problem areas and risks are discussed in full with the Supplier.

 

  1. CONFIDENTIALITY: Both parties to the Contract will hold any confidential information in its possession with regard to the other in the strictest confidence and, further undertakes that unless with the prior written consent of the other party, not to copy, reproduce, distribute or disclose any confidential information to anyone outside this Agreement. Quotations, proposals and other documentation and advice (written or oral) provided by the Supplier is deemed to be confidential.

 

  1. DATA PROTECTION: Both parties warrant that they shall comply with all relevant laws, rules and regulations, whether local, national or supranational relating to data protection.

 

  1. BREACH: Any breach of any term of the Contract by the Buyer will enable the Supplier to treat the Contract as repudiated immediately, and treat any such breach as giving rise to a claim for damages or other remedy in accordance with the terms of the Contract, or that the full value of the Contract should be paid to the Supplier immediately. It is also considered a breach of contract if payment has not been made in full by the appointed date or within a period of 14 days from the due date of the invoice. If the Buyer becomes insolvent or (being a company) makes an agreement with its creditors or if the Buyer enters into liquidation (whether compulsorily or voluntarily) or has a receiver appointed or has an administrator appointed to manage its affairs, business and property or if it takes or suffers any similar action in consequence of debt the Supplier may without prejudice to any other of its rights terminate the Contract forthwith by notice to the Buyer or any person in whom the Contract may have become vested. The Supplier can seek re-dress against outstanding debts under contracts of bailment to enter the Buyer’s premises unreservedly to reclaim property and work that has not been fully paid for. Where the Supplier cannot be fully recompensed or is at a disadvantage owing to the early termination of the contract he can exercise his right to have the balance of money owing under the contract settled in full. This is of particular relevance to maintenance agreements, where in cases of breach or unfair termination the Supplier can claim the full balance of monies still unpaid for the full term.

 

  1. CANCELLATION/TERMINATION: The Contract can only be cancelled by both parties agreeing to terminate the agreement (excluding circumstances of breach of contract). Should one party wish to terminate sufficient notice should be granted to the other party of not less than 3 months citing reasonable grounds for termination. For specific delivery of goods, installation or other service/work provided by the Supplier (where term of cover is not a determinant) the notice period should be sufficient to ensure no waste of time or labour nor added expenditure by the Supplier in pursuit of the Contract so as to leave him at a disadvantage. The Supplier will have the right to enforce the Contract or claim from the Buyer a fair and reasonable price as compensation for all completed work as well as work in progress undertaken by the Supplier on behalf of the Buyer at the time of termination/ cancellation. In such circumstances the Supplier will draw up an invoice and once issued the Buyer will settle this in full within 14 days. The Supplier will be entitled to reclaim expenses from the Buyer (or any person in whom the Contract has become vested) for time wasted or spent investigating cases of breach or unreasonable cancellation / termination. The Supplier will not be liable for any loss or damage to the Buyer including without limitation special damages, loss of profit, loss of contribution, loss of revenue, loss of opportunity or other economic/ consequential loss. In the case of a digital marketing plan/website subscription bundle, a minimum contract term of six months is agreed, and 30 days notice of cancellation of agreement shall be given by the Buyer, and the balance of the six month contract shall be due payable. The Buyer is then entitled to keep website live on our referred hosting platform until annual domain renewal date.

 

  1. GOVERNING LAW/DISPUTE RESOLUTION: The construction, validity and performance of the Contract shall be governed by the laws of the Republic of Ireland and all disputes which may arise in connection with the Contract (unless and otherwise agreed or settled by the parties) will be submitted to the Courts of that jurisdiction.

 

  1. GENERAL: Each of the rights of the Supplier under the Contract are independent not cumulative and without prejudice to all other rights available to it under general law, statute or otherwise and the exercise or non-exercise of any such rights shall not prejudice or constitute a waiver of any other rights of the Supplier whether under this agreement or otherwise. It will be the responsibility of the Buyer to ensure that the Supplier has full access to equipment and the site in order to complete the work under the Contract or to recover items where the Supplier has title in the goods and work. No variation of the Contract shall be binding on any party unless and to the extent that such variation is recorded in a written document signed by both parties. Where any such document exists and is so signed such party shall not allege that such document is not binding by virtue of an absence of valuable consideration. If any of the terms of the Contract are found to be illegal, invalid or unenforceable the remaining provisions will remain enforceable. The Supplier will not be responsible for the means, methods, techniques, sequences, procedures or safety precautions adopted by the Buyer in connection with the supply of the goods or services. The Supplier will not be responsible for the acts or omissions of the Buyer. The Supplier shall not be liable for general recommendations given to the Buyer with regard to future developments, problems, threats, opportunities or innovations so long as these are given in good faith. Such recommendations are purely speculative and the Buyer must take care to properly investigate issues before taking a course of action. The Buyer cannot later claim he relied on the Supplier nor claim remedy under the provisions of estoppel that the Supplier should be made to account for a change in the Buyers position. No action regardless of form arising out of this agreement may be brought by either party more than one year after the cause of action has arisen.

End

© TECH VILLAGE. 2015

 

Leave a comment

Password Reset
Please enter your e-mail address. You will receive a new password via e-mail.