TERMS AND CONDITIONS OF SALE

OF O’DONOVAN ENGINEERING COMPANY LIMITED

 

  1. GENERAL

 

  • Every quotation or tender is submitted by O’Donovan Engineering Company Limited (hereinafter called “ODEL”) and it is a term of condition hereof that notwithstanding anything in any enquiry, specification, acceptance or order to the contrary, the undermentioned terms and conditions shall apply to every sale unless there is any variation thereof expressly and specifically agreed by the Company in writing.
  • Every quotation or tender is without commitment so that any acceptance thereof or order based thereon shall not constitute a contract binding on the Company unless and until confirmed by the Company in writing.
  • Every quotation or tender is open for acceptance within twenty eight days only unless otherwise expressly stated by the Company in writing.
  • Every quotation or tender is based on the information afforded to the Company at the time of quotation or tender and any confirmation of order by the Company is based on sufficient information being in the Company’s possession or accompanying the order to enable the Company to proceed forthwith.

 

  1. PRICES

 

  • All prices are based on the Company’s current lists which are and may be subject to alteration without notice.
  • Prices of equipment, spare parts and/or other articles referred to in the Company’s quotation or tender and not of the Company’s manufacture are quoted subject to the published terms and conditions of business of such other manufacturer or manufacturers.
  • The prices as referred to in the Company’s quotation or tender unless otherwise expressly stated are net for cash before delivery at the Company’s works at Clonted, Coachford in the County of Cork and subject to the payment to the Company of such deposits in cash, if any, as may be required by the Company.

 

  1. PRICE ALTERATION

 

  • The Company’s quotation or tender and/or acceptance of any order, Contract or Agreement for Sale is, unless otherwise stated, based on the then current price and calculated by reference to customs and other duties and all taxes whether international, national or local and the costs of materials, labour and transport ruling at the date of such quotation or tender and in the event of any increase in customs and other duties or taxes whether international, national or local or in the costs of material, labour or transport or in any wages agreements covered by national agreements and/or any other production costs whether direct or indirect, including any increase in the price of any vehicle, spare part or other article or articles not manufactured by the Company after the date of quotation or tender or contract or agreement and before the completion of the contract or agreement, then the Company shall be entitled to give notice in writing of such increase or increases to the Purchaser and any quoted or agreed purchase price shall be correspondingly increased unless, within seven days after the date of such notice or within such further time as may be expressly agreed in writing, the Purchaser gives to the Company notice in writing that he dissents from and does not agree to such increase in price or prices.
  • In the event of the Purchaser giving such notice of dissent as aforesaid the Company shall have the option to complete the said contract or agreement without any increase in purchase price save to any extent which the Purchaser may agree to an increase of price or to cancel the said contract or agreement and to return the deposit, if any, made by the Purchaser without interest. Any such cancellation as aforementioned shall not give rise to or be the subject of any claim by the Purchaser against the Company for any loss or damage sustained by reason of such a cancellation or otherwise.
  • The Company further reserves the right to increase the price aforesaid to account for any increase or decrease in the rate of exchange of the euro between the date of quotation or tender or contract or agreement and before the completion of the contract or agreement.

 

  1. ILLUSTRATIONS, DESCRIPTIONS, WEIGHTS AND MEASUREMENTS

 

  • Descriptive literature, photographs, illustrations, descriptions, drawings, advertisements, lists and like matter do not necessarily represent in detail equipment, spare parts and/or other articles which are subject to quotation or tender and shall not be or form part of any contract, sale or agreement for sale entered into by the Company.
  • Although great care is taken by the Company to show accurately all the particulars, weights and dimensions in connection with any tender, quotation, specification, illustration, drawing, advertisement and the like, the Company does not warrant that such particulars, weights and dimensions are accurate and reserves the right to alter details where necessary.
  • No slight deviation from the particulars, weights and dimensions in connection with any tender, quotation, specification, illustration, drawing, advertisement, list or the like shall vitiate any contract, sale or agreement for sale or give rise to or be the subject of any claim by the Purchaser against the Company.
  • Specifications, drawings, etc., prepared by the Company for the purpose of a quotation or tender or otherwise shall remain the property of the Company and be returned on request; they shall not be used save for the purpose of the quotation or tender and the Purchaser shall not disclose them to third parties and shall not copy, lend or deal with them in any way without the specific consent in writing from the Company.

 

  1. IMPROVEMENTS AND ALTERATIONS

 

  • The Company reserves the right, without previous or other notice, to carry out alterations and/or improvements in design and/or method of manufacture and any such alteration and/or improvements shall in no way affect the contract, sale or agreement for sale.
  • The Company reserves the right to substitute other equivalent fitments for any proprietory of special fitment ordered by the Purchaser and found unprocurable by the Company.
  • The Company reserves the right to supercede, materially alter or abandon the design of type of vehicle, spare part or other article contracted for and substitute an equivalent type current at the time of delivery.
  • Should the Company desire to exercise the right mentioned in paragraph (C) above the Company shall give written notice to the Purchaser of it’s intention so to do and the Purchaser may, within fourteen days after the date of such notice (time being for this purpose of the essence of the contract), by notice in writing to the Company, cancel the contract and the exercise of such right by the Purchaser shall not give rise to or be the subject of any claim by the Company for loss and damage.

 

  1. DELIVERY

 

  • Unless otherwise expressly agreed by the Company in writing, the place of delivery shall be the Company’s works at Clonted, Coachford in the County of Cork and the Company shall be in no way liable for any loss or damage to the deterioration of any equipment, spare part or other article or articles after removal from the Company’s works from whatever cause arising and the risk thereof shall be borne by the Purchaser.
  • In the event of the Company expressly undertaking to deliver any equipment, spare part or other article other than at the Company’s works, the method of delivery or carriage shall be at the Company’s option providing nevertheless, unless otherwise expressly agreed in writing, that from the time of dispatch from the Company’s works and until delivery of the vehicle, spare part or other article at it’s destination, the risk of any loss or damage to or the deterioration of the equipment, spare part or other article from whatever cause arising shall be borne by the Purchaser. Any added expense caused by sending the equipment, spare part or other article by a method different from that proposed by the Company shall be chargeable to and borne by the Purchaser.  On being instructed in writing so to do, the Company will insure the equipment, spare part or other article against loss, deterioration or damage in transit, any expense thereof shall be borne by the Purchaser.
  • If the agreed place of delivery of the equipment, spare part, or other article is the Company’s works, the Company shall notify the Purchaser in writing that the same is ready for delivery and the equipment, spare part or other article must be removed within two days of such notice. Failing removal within such time the vehicle, spare part or other article lies at the Company’s works entirely at the risk of the Purchaser.
  • If the equipment, spare part or other article is to be sent by a route involving sea transit the Company shall in no circumstances be liable to give notice in accordance with Section 32(3) of the Sale of Goods Act, 1983 or otherwise nor shall the vehicle, spare part or other article be or be deemed to be at the Company’s risk during any sea transit unless there be express agreement in writing to the contrary.

 

  1. PAYMENT

 

  • Payment is to be strictly net in euros in Ireland at the Company’s offices before delivery of the equipment, spare parts or other article unless otherwise expressly agreed in writing and this is a condition precedent to delivery.
  • If the payment before delivery is stipulated, payment must be made before the equipment, spare part or other article is consigned for shipment or otherwise and this is a condition precedent to delivery.
  • Failure to pay for any equipment, spare part or other article on the due date shall give the Company the right to withhold further deliveries under any contract, agreement for sale or sale which the Company has currently with the Purchaser or, at the Company’s option, to cancel the contract, agreement for sale or sale in respect of which default of payment is made or other contract, agreement for sale or sale current with the Purchaser without prejudice to any claim for damages the Company may have against the Purchaser.

 

  1. CREDIT TERMS

 

Where the Company has agreed to extend credit to the Purchaser the Company shall be entitled to charge interest at the rate of 15% per annum compound interest in respect of any unpaid balance due and owing to the Company after a period of 30 days from the date of delivery.

 

  1. LOSS, DAMAGE, CANCELLATION OR ORDER OR SUSPENSION OF DELIVERY

 

  • The Company shall in no way be liable for any delay in delivery of any equipment, spare part or other article or completion of any contract, agreement for sale or sale or for any loss howsoever arising, whether directly or indirectly, from strike, lock-out or other labour disturbance, war, riot, civil commotion, rebellion, storm, tempest, earthquake, frost, flood, drought, fire, explosion, breakdown, accident, legislative order or the like affecting the Company’s business or the business or any supplier of the material, parts or equipment to the Company nor shall any delay arising therefrom entitle the Purchaser to cancel any contract, agreement for sale or sale.
  • Upon the happening of any of the events or circumstances set out in Paragraph 9. (A) the Company shall be at liberty to suspend delivery or to cancel the contract, agreement for sale or sale and shall in no way be liable for any loss or damage which may be suffered by reason thereof.

 

  1. QUALITY

 

  • The Purchaser shall contract with the Company as principal and not as agent and shall not give and has no authority to give any warranty or make any representation or otherwise act on the Company’s behalf.
  • If, during the course of manufacture of any equipment, spare part and/or other article and subsequent to the making of the contract or agreement for the manufacture and sale of same, or at any time, the Purchaser requests or instructs any deviation from drawings and/or other specifications as originally agreed and submitted and if, as a result of such deviation, the goods are unsatisfactory the Company shall be in no way liable or responsible therefore.
  • Where any special part is manufactured and delivered in accordance with the Purchaser’s design, pattern, drawing, sample of material, then the Company’s interest is confined to manufacture in accordance with the Purchaser’s requirements. Under no circumstances shall the Company be liable or responsible for any loss or damage consequential or otherwise caused, directly or indirectly, by any fault in design, pattern, drawing, sample or material.  In such circumstances the Purchaser will indemnify the Company against all claims arising out of any breach or infringement on any patent rights, registered design, copyright or other analysis protection.
  • The Purchaser shall inspect the equipment, spare part or other article immediately upon delivery and shall within fourteen days give notice in writing to the Company of any matter of thing by reason whereof he may allege that the said equipment, spare part or other article is not in accordance with the contract or agreement for sale. If the Purchaser shall fail to give such notice that the said equipment, spare part or other article shall be deemed in all respects to be in accordance with the contract or agreement for sale and the Purchaser shall be bound to accept and pay for same accordingly.

 

  1. CLAIM

 

  • No claim for damages or shortages will be considered unless the Company and it’s carriers are advised in writing within three days of delivery and no claim for non-delivery will be considered unless the Company and it’s carriers are notified within ten days of despatch.
  • Claims for shortage, loss and non-delivery of any consignment other than a destination in Ireland or part thereof will only be considered if the Company is notified twenty one days of the arrival of the goods at their destination. Return or replacement will be by normal transportation.  Special delivery service such as air freight will be charged to the Purchaser.

 

 

  1. IMPORT LICENCE

 

The Purchaser shall be responsible for obtaining any import licence necessary or required for the vehicle, spare part and/or other article and failure so to do from any cause whatsoever shall not entitle the Purchaser to avoid, repudiate, cancel or rescind any contract or agreement for sale entered into with the Company.  Further the Purchaser shall compensate the Company for any loss which the Company may sustain by reason of any failure to obtain or delay in obtaining any such licence or licences as aforementioned.

 

  1. EXPORT LICENCE

 

The Company shall make application for any necessary export licence in respect of any vehicle, spare part and/or other article and any contract, agreement for sale or sale and is subject to any necessary licence being granted or any necessary permission for exporting being obtained to export any vehicle, spare part and/or other article and to any such licence or permission remaining in full force and effect during the currency of any contract or agreement for sale.

 

  1. EXHIBITION

 

Equipment and other goods are sold by the Company only on the express condition that without the Company’s prior consent in writing they shall not be exhibited at any exhibition.

 

  1. RESERVATION OF TITLE

 

  • The legal ownership of and property in the equipment, spare part and/or other articles (hereinafter in this clause called “the goods”) shall pass to the Purchaser when the goods, the subject of this contract or any other contract between the Purchaser and the Company which at the time of payment of the full price of the goods sold under this contract have been delivered to the Purchaser but not paid for in full, have been paid for in full.
  • The ownership of the property in the goods shall remain with the Company in accordance with this condition and the Company shall be entitled to redelivery of the goods notwithstanding the subjection of the goods to any process, addition, mixture or treatment, whether by way of manufacture or otherwise, and whether by the Purchaser or others.
  • The Company shall (without prejudice to it’s other rights hereunder) be entitled, at any time after the due date for payment or before such due date in the event that serious doubts arise as to the Purchaser’s solvency, in it’s absolute discretion, to give notice in writing to the Purchaser to pay within seven days the full price of such goods as have already been delivered to the Purchaser under this contract or under any other contract between the Purchaser and the Company and if on the expiration of that period the Purchaser has failed to pay the whole of the price outstanding the Company shall be entitled to immediate redelivery of such goods as have been delivered to the Purchaser under this or any other contract (but excluding any goods title in which has already passed to the Purchaser) and shall also be entitled to such immediate delivery upon earlier appointment of a Receiver of the whole part of the Purchaser’s undertaking or assets or the passing of a resolution of the making of an Order to wind up the Purchaser or the bankruptcy of the Purchaser for which purpose the Company shall be entitled and the Purchaser hereby grants to the Company permission to enter such premises where goods are held for the purpose of removing such goods and to remove such goods to indemnify the Company against loss, damage and expense incurred by the Company in connection with the debt.
  • Should the Company, while any money due by the Purchaser to the Company for any goods supplied by the Company to the Purchaser, sell the goods, the subject of this contract, to any Purchaser from whom it receives the same in good faith and without notice of any lien or other right of the Company to the goods, the Purchaser shall receive and hold the proceeds of such sale in trust for the Company until all monies due by the Purchaser to the Company for any goods sold and delivered by the Company to the Purchaser are paid by the Purchaser.

 

  1. DEFAULT

 

Without prejudice to the Company’s other rights to claim damages, the Purchaser will on termination of the contract, for any reason whatsoever, or if the Purchaser cancels, extends, delays or purports to cancel, extend or delay the contract or fails to take delivery of any equipment, spare part and/or other article or becomes subject to the bankruptcy laws of being a body corporate, enters into liquidation, whether voluntary or compulsory, or has a Receiver appointed of it’s undertaking, indemnify the Company against loss, damage or expense incurred by the Company in connection with the Company including, but not limited to the total costs of manufacture of the vehicle, spare parts and/or other article and a proportion in respect of profit.

 

  1. ARBITRATION

 

If any dispute shall arise as to the interpretation or effect of these conditions or as to the rights or liabilities of either the Company or the Purchaser under this contract, it shall be referred for decision to an Arbitrator to be nominated by the President for the time being of the Incorporated Law Society of Ireland and the Arbitration Act, 1954 and any statutory enactment or modification thereof shall apply to such arbitration.

 

  1. TIME

 

No giving of time or delay or indulgence on the Company’s part in enforcing any term or condition of any contract or agreement for sale shall prejudice the Company’s rights or operate as a waiver of any term or condition of any such contract or agreement for sale.

 

  1. LEGAL CONSTRUCTION

 

  • Any contract, agreement for sale or sale shall in all respects be construed, operate and be governed by the law of the Republic of Ireland and be subject to the jurisdiction of the Courts of the Republic of Ireland.
  • Unless otherwise expressly agreed in writing the Purchaser undertakes and agrees to submit himself to the jurisdiction of the Courts of the Republic of Ireland.
  • The legal construction of the above mentioned clauses shall not be affected by their titles.
  • Any notice required to be given under these conditions shall be sufficiently served if sent by pre-paid post, in the case of notice to the Company at the Company’s offices at Clonted, Coachford in the County of Cork and in the case of notice to the Purchaser at the Purchaser’s address as shown on the Form of Quotation or such other address as he thereafter indicates to the Company as his current address.

 

  1. WARRANTY

 

The goods manufactured by the Company are supplied with the following express warranty:-

 

  • For the purpose of this warranty the term “goods” means and includes new equipment or the parts thereof including replacement parts manufactured by the Company. It does not include tyres, rims, electrical equipment or other trade or proprietary articles, fittings or goods (including body work) not of the Company’s own manufacture although supplied by the Company and no warranty is given by the Company or is to be implied in respect thereof.
  • For a period of twelve months from the date upon which any equipment sold by the Company is delivered to the first owner/user thereof the Company will exchange or repair any part or parts which need or needs replacing or repair by reason of defective material or workmanship.
  • The Company will not be responsible for any expense which the Purchaser may incur in removing or having removed or replacing or having replaced any part or parts sent for inspection or fitting or having fitted any new part supplied in lieu thereof.
  • No claim can or will be considered unless the person claiming :-
  • Submits to the Company full particulars of the claim and the reasons therefore, stating inter alia the date of purchase, the name and address of the person or firm from whom purchased
  • Immediately upon delivery of the alleged defect returns carriage paid to the Company’s works (unless otherwise requested) the alleged defective part or parts.

 

  • The liabilities undertaken by the Company under this warranty shall not apply to:-
  • Any equipment used for any purpose whatsoever other than the genuine commercial use of the owner or user.
  • Any part or parts which in the opinion of the Company, has or have been damaged by accident, abnormal wear and tear or neglect or by the use of oil not recommended by the Company, overloading, excessive speed or improper use or by any alteration whatsoever to the chassis.
  • Any equipment of which the identification numbers or marks have been altered or removed.
  • Any second hand equipment or part or parts thereof.
  • Any part or parts of equipment to which a body unsuitable in the opinion of the Company has been fitted.
  • Any goods manufactured and delivered by the Company containing material having defects in quality which would not be apparent to the Company on a reasonable examination prior to such manufacture and delivery.
  • The liability of the Company is limited to the terms of this warranty and the Company shall not be liable for any claim for personal injury, loss of use of the vehicle or any other consequential loss or damage caused by any defect in the goods whether the same arises out of the negligence of the Company or otherwise.
  • The Company will use it’s reasonable endeavours to pass on to the Purchaser, if it is able to do so, the benefit of any warranty by the actual supplier or manufacturer to the Company in the case of articles referred to in the second sentence of paragraph.
  • This warranty is not assignable and is not applicable to any item which has been plated, processed or treated in any manner after it has left the Company’s works.
  • Save as aforementioned all warranties, conditions, stipulations whether express or implied and whether by statute or common law as to quality or fitness of the goods for any purpose are expressly excluded.
  • The decision of the Company in all cases of claim shall be final and conclusive and the owner/user shall accept it’s decision on all questions as to defects and the exchange of any part or parts.