Terms & Conditions of Trading

1.     DEFINITIONS

1.1   In these Terms and Conditions, the following words shall have the meaning set out below:

“Carrier” means any third party responsible for transporting purchased Goods from our Premises to customers.

“Conditions” means the standard terms and conditions of supply of Goods set out in this document including the introduction and any special terms and conditions agreed in writing by the Seller.

“Contract” means a legally binding contract for the sale and supply of Goods and made in accordance with these Conditions.

“Customer” means the party identified as the Customer in the Agreement to whom Electromaster may agree to supply Goods in accordance with these terms and conditions.

“Delivery Date” means the date specified by the Seller when the Goods are to be delivered, or the date on which the delivery takes place, whichever is the later;

“Delivery Destination” means the location specified in a Contract for the delivery of the Goods ordered by the Buyer under that Contract;

“Intellectual Property Rights” means any patents, trademarks, service marks, registered designs, database rights, applications for any of the foregoing, copyright, unregistered design rights know how and any other similar protected rights in any other country.

“Goods” means the articles which the Buyer agrees to purchase from the Seller.

“Local Trade Counter” means any of the Electromaster branches.

“Order” means an order placed by the Buyer for the purchase of the Goods.

“Premises” means any of the Electromaster branches.

“Price” means the price of the Goods either advised to you or detailed in the confirmation email where the Order is placed via a Website.

“Seller” means Electromaster Limited of Technology Centre, Rockgrove Industrial Estate, Little Island, Co Cork and Unit 1 Whitestown Business Park, Whitestown Drive, Tallaght, Dublin 24.

“Website” means the website that you are currently using (www.electromaster.ie) and any sub-domains of this site unless expressly excluded by their own terms and conditions.

“Working Day” means any day other than a Saturday or Sunday but excluding bank and public holidays in the republic of Ireland.

“you” means the person, form or company who are making the purchase of the Goods.

1.2 Any references to any statute shall include references to that statute or re-enacted from time to time.

 

2.     BASIS OF CONTRACT

2.1   All orders place with Electromaster Limited by the Customer for Goods shall constitute an offer to Electromaster, under these terms and conditions, subject to availability of the Goods and to acceptance of the order by the Seller’s authorised representative.

2.2   All orders for Goods supplied by Electromaster are subject to these Terms and Conditions and the placing of an Order by you will constitute acceptance of these Conditions. You may copy these Conditions and store them for your future reference.

2.3   It is agreed that these terms and conditions prevail over the Customer’s terms and conditions of purchase unless these latter terms and conditions are amended by Electromaster in writing and signed by an Electromaster authorised representative.

2.4   In preparing any quotation, the Seller shall be entitled to ask the Customer for, and the Customer shall provide with 15 Working Days, such information as the Seller may require in its absolute discretion. It shall be a condition of any quotation that the information provided by the Customer is correct, accurate, not misleading and a complete response to the Seller’s request(s) when provided and remains so for at least until the later of the date when the quotation lapses or the relevant Goods are delivered.

2.5   Save where indicated to the contrary on the Seller’s quotation, the Seller’s quotation shall automatically lapse after 30 days of the date of the quotation.

2.6   The Customer shall indemnify the Supplier in full against all losses, costs, damages, claims, charges and/or expenses including without limiting effect any obligation to pay any sum(s) to the relevant manufacturer(s) of relevant Goods) incurred by the Seller as a result (whether directly or indirectly) of information provided by the Customer in accordance with clause 2.4 being or subsequently becoming incorrect, inaccurate, misleading and/or incomplete of the Customer acting other than in accordance with such information.

 

 

3.     DELIVERY

3.1   The Seller shall deliver the Goods to the Delivery Destination stipulated on the Order within a reasonable period following receipt of the Order or within such other period as shall be specifically agreed in writing by the Customer and the Seller. This point assumes that an agreement was not reached between Customer and Seller that the Goods would be collect at the Local Trade Counter.

3.2   Delivery of the Goods shall be completed:

(a)    On the Goods’ arrival at the Delivery Destination; or

(b)   On the completion of loading of the Goods at the Seller’s premises in circumstance where it has been agreed that the Customer will collect the Goods from the Seller.

3.3   Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods howsoever caused.

3.4   In the event of an act of God, governmental direction or industrial or international unrest or any other cause of whatsoever nature beyond the control of the Company, the Company shall not be liable for any default in the performance of the Contract arising therefrom.

3.5     If in the opinion of the Company the Customer is in an unstable financial position or is in breach of any Contract with the Company, the Company may stop any goods in transit and suspend further deliveries and may determine any Contract with the Customer without the prejudice to any existing claim.

3.6     If the Customer fails to take delivery or accept delivery of the Goods, the Seller may resell or otherwise dispose of part or all of the Goods and issue a credit note to the Customer for the price of the Goods less any reasonable transport and re-stocking costs.

3.7     The Goods may be delivered in instalments. Each delivery shall constitute a separate Contract and failure by the Supplier to deliver any one or more of the instalments (or faulty Goods) in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.

3.8     It is the responsibility of the Customer as required to inspect the Goods on receipt and not notify the Seller of any breakages or shortages or failure of Goods to arrive. The Seller should be notified within 5 working days of receipt if invoice or delivery, whichever arrives first, to allow the Seller to be able to establish the cause of the problem.

3.9     The Seller shall not be liable for any non-delivery of Goods unless the Customer informs the Seller of such non-delivery by e-mail to accounts@electromaster.ie within 5 Working Days of the date when the Goods would in the ordinary course of events have been received.

3.10  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 rate Contract rate against any invoice raised for such Goods.

 

4.     QUALITY

4.1   Goods that fail on installation: The Seller operates a returns procedure for Goods that fail on installation. The returns procedure may vary depending on the manufacturer of the Goods and will be notified to the Customer upon the Customer notifying the Seller that the Goods have apparently failed on installation.

4.2   Goods that fail after installation: In no circumstances may the Faulty Goods be returned to the Seller by the Customer without the prior written consent of the Seller. The Customer must notify the Seller of the fault becoming apparent and follow the instructions notified to it by the Supplier in relation to the fault.

4.3   The Seller’s liability in respect of defects in the Goods shall be limited to the replacement or repair of faulty items or material, or issue of a credit note in respect thereof, or the granting of a refund or other such compensatory measures as the Seller at its discretion considers appropriate in the circumstances, and shall be conditional upon the Customer complying with the conditions of the manufacturer’s warranty (where applicable). Such measures shall relate only to the actual items or their value.

4.4   General provisions relating to 4.1 and 4.2:

(a)    Any returns shall be subject to, and the Customer shall comply with, the Seller’s returns procedures as set out in clause 5;

(b)   The Customer shall be responsible for all transportation and insurance costs relating to returned Goods;

(c)    The Seller shall not be responsible for installation of returned Goods after repair or exchange; and

(d)   Any labour costs and expenses incurred in extracting defective parts and/or components shall be borne by the Customer and if incurred by the Seller shall be paid for by the Customer at Seller’s then standard applicable rate.

5.     RETURN OF GOODS

5.1   Prior authority must be obtained from the Seller which will be given at the Seller’s sole discretion.

5.2   The Seller will not accept any returns unless they are notified to the Seller within 14 days of the delivery and returned within 14 days of the date of issue of the authorisation of returns, clause 5.1, at the Customer’s cost. The notification shall include the reason for the return, eg whether the Goods are defective or have been wrongly picked. The Customer has no right to return Goods which have been delivered in accordance with the Contract.

5.3   Goods returned must be in the original packaging and in a clean resalable condition (subject only to defects which have been notified to the Seller in accordance with clause 5.2. The Goods must also be accompanied by a delivery docket. Any Goods not meeting these criteria may, at the Seller’s discretion, be refused and returned to the Customer and/or, a handling charge (equal to a minimum of 15% of the order value of the Goods involved) will be levied to the Customer’s account to cover the additional costs involved (such as and without limitation, repackaging costs and/or carriage and associated costs of returning the Goods to the Customer). In addition, the Customer will be charged for any damage caused to the Goods whilst they were in the Customer’s custody or control.

5.4   If the Customer fails to make Goods ready for collection on the return date agreed with the Seller, the Seller reserves the right to charge the Customer a handling fee.

5.5   If, upon examination by the Seller or the manufacturer, the returned Goods are found not to be defective, the Seller reserves the right to return the Goods to the Customer and to charge the Customer a handling fee equal to a minimum of 15% of the order value of the relevant Goods. In addition, the Customer shall be deemed to have purchased the replacement Goods on these terms and conditions and the Seller shall be entitled to invoice the Customer for the replacement Goods.

5.6   The Seller shall not be responsible for the loss in transit of any Goods where the Customer makes its own arrangements to return the Goods to the Seller.

 

6.     RISK AND PROPERTY

6.1   The risk of damage to or loss of the goods (and those Articles into which those goods are subsequently incorporated) shall pass to the Customer on delivery irrespective of whether property in the said goods and/or Articles remains in the Customer.

6.2   Title to the Goods sold by the Company whether or not delivered to the Customer shall not pass from the Seller until the full purchase price has been paid by the Customer. 

6.3   The Customer hereby grants the Company a right of entry onto the land and premises of the Customer for the recovery of such goods. The Company shall be entitled to use all reasonable means for their recovery.

6.4   Until title to the Goods has passed to the Customer, the Customer shall:

(a)    Hold the Goods on a fiduciary basis as the Seller’s bailee;

(b)   Store the Goods separately from all other Goods held by the Customer so that they remain readily identifiable as the Seller’s property;

(c)    Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(d)   Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(e)    Notify the Seller immediately upon the occurrence of an insolvency event; and

(f)    Give the Seller such information relating to the Goods as the Seller may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business;

(g)   Be obliged to store the Seller’s Goods separately and identify them as belonging to the Seller; and

(h)   Allow the Seller access to its premises to verify that the Goods have been stored correctly.

6.5   The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any Goods has not passed from the Seller.

6.6   If, before title to the Goods passes to the Customer, the Customer becomes subject to an Insolvency Event, or the Seller reasonably believes that any insolvency event is about to happen and notifies the Customer accordingly, of if the Customer’s right to possession of the Goods is terminated in accordance with Clause 6.7, or if any sum due to the Seller as referred to in Clause 6.2 is not paid when due, then, provided that the Goods have not been resold or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any times require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6.7   The Customer’s right to possession of the Goods shall terminate immediately if the Customer becomes subject to an insolvency event. However, the Seller, having been informed of the Customer becoming subject to an insolvency event, may consent in writing (subject to such terms as the Seller may in its sole discretion impose in respect of such consent) to the Customer’s continued right of possession of the Goods.

 

7.     CUSTOMER’S PROPERTY

7.1   The Customer’s property address supplied to the Seller by or on behalf of the Customer shall, while it is in possession of the Seller or in transit to or from the Customer, be deemed to be at the Customer’s risk and the Customer shall insure accordingly.

 

8.     CREDIT ACCOUNT

8.1   The Customer may apply to open a credit account with the Seller by obtaining a credit account application form from the Seller.

8.2   Once the Customer has returned the credit account application form to the Seller, the Seller will review the form and notify the Customer of its acceptance or rejection within 10 Working Days of receiving the credit application.

8.3   Following the opening of the account, the Seller will issue a credit statement to the Customer on a monthly basis.

8.4   Credit accounts with overdue balances will be placed on credit hold. This means that no further Goods will be despatched. Repeated failure to adhere to the Seller’s credit terms will result in permanent loss of the credit account.

 

9.     PRICE AND TERMS OF PAYMENT

9.1   The price of Goods shall be the price at the date of dispatch and the Seller reserves the right to amend its quoted prices at any time prior to dispatch.

9.2   The Seller may, by giving notice to the Customer at any time, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a)    Any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, compliance with statutory provisions from time to time in force, and increases in labour, materials and other manufacturing costs and increases in prices charged to the Seller by any manufacturer);

(b)   Any request by the Customer to change the Delivery Date(s), the Delivery Location, quantities, capacity, form, content, style, description or types of Goods ordered; or

(c)    Any delay caused by any instructions of the Customer or failure of the Customer to give the Seller adequate or accurate information or instructions.

9.3   Unless otherwise expressly agreed in writing the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, all of which will be charged at an extra cost.

9.4   The price of the Goods is exclusive of amounts in respect of Value Added Tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

9.5   The Seller may invoice the Customer for the Goods on the date of dispatch of the Goods for delivery.

9.6   Unless otherwise agreed between the parties in writing, and except in the case of a cash sale which shall be paid for in accordance with Clause 9.7, the Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice.

9.7   Where the Customer does not have a credit account with the Seller, the Seller will require immediate payment in full upon placing the Order.

9.8   Payment may be made by credit card. There will be a surcharge of 1.5% for payment by this method.

9.9   The Customer shall make all payments in euro. Where payments in an alternative currency are authorised in writing by an authorised representative of the Seller prior to the Order being made, such payments shall be made by bank transfer to the account to be designated by the Seller’s authorised representative from time to time.

9.10If the Customer fails to make any payment due to the Seller by the due date for payment, then the Customer shall pay interest on the overdue amount at a rate of 4% above the EURIBOR (Euro Interbank Offered Rate) from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount and an administration charge 5% of the total amount due.

9.11The Customer shall pay all amounts due in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part. The Seller may at any time, without limiting any other rights or remedies it may have, set off any amounts owing to it by the Customer against any amount payable by the Seller to the Customer.

9.12In no case shall any dispute concerning:

(a)    Any item or separate part of the Goods; or

(b)   Any other contractual obligation or liability of the Seller to the Customer, affect the Customer’s obligation in respect of payments to be made under these Conditions.

 

10.   CANCELLATION

10.1The Customer’s Order once accepted by the Seller may only be cancelled or suspended with the Seller’s written consent and the Customer acknowledges that the Seller reserves the right to require the Customer to reimburse the Seller in full for any loss suffered as a result of such cancellation (including, but not limited to, stock specifically ordered and other additional costs such as storage, loss of profit, damages, charges and expenses). Without limiting its rights under the Contract in any way, the Seller reserves the right to charge the Customer for lost profit should the Customer cancel the Order without prior written agreement of the Seller.

10.2Without limiting its other rights or remedies the Seller may, without liability to the Customer cancel the Contract (and/or all further deliveries between the Customer and the Seller) with immediate effect by giving written notice to the Customer, and may recover all losses resulting therefrom, if the Customer:

(a)    Commits a material breach of its obligations under the Contract;

(b)   Fails to pay any amount due under the Contract on the due date for payment;

(c)    Fails to pay any amount due under any Contract referred to in Clause 6.2;

(d)   Commits or is party to dishonest or fraudulent conduct in relation to the Contract; and/or

(e)    Becomes subject to and Insolvency Event.

10.3On termination or suspension of the Contract for any reason:

(a)    The Customer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest;

(b)   The Customer shall return all Goods which have not been fully paid for. If the Customer fails to do so, then the Seller may enter the Customer’s premises or any other location and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not sue them for any purpose not connected with the Contract;

(c)    The accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(d)   Clauses which expressly or by implication have effect after termination shall continue in full force and effect.

 

11.   INSOLVENCY EVENTS

11.1For the purpose of these Terms and Conditions, the following events shall be deemed to be Insolvency Events:

(a)    The Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of the Companies Act 2014, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of the Personal Insolvency Act 2012, or (being a partnership) has any partner to whom any of the foregoing apply;

(b)   The Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

(c)    (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(d)   (being an individual) the Customer is the subject of a bankruptcy petition or order;

(e)    A creditor or encumbrancer of the Customer 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 its assets;

(f)    (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

(g)   (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;

(h)   A person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;

(i)    Any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1 (a) to clause (11.1) (h) (inclusive);

(j)    The Customer encumbers or in any way charges any of the Goods;

(k)   The Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;

(l)    The Customer’s financial position deteriorates to such an extent that in the Seller’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

(m)  (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.

 

12.   LIMITATION OF LIABILITY

12.1The Seller’s liability in respect of any Goods supplied to the Customer shall be limited to the purchase price of such Goods actually paid under the Contract or at the Seller’s option to replace such Goods.

12.2While the Seller makes every effort to ensure that outgoing calls cannot be made using the Goods by a party who has gained unauthorised access to the Goods, the Seller shall not be liable for any loss of any nature whatsoever to the Customer or third parties as a result of a party gaining unauthorised access to the Goods.

12.3No liability in respect of Goods alleged to have been lost, undelivered, pilfered or damaged in transit shall be accepted by the Seller where the risk in the Goods shall have passed to the Customer before the alleged incident or where the Customer’s carrier has given a receipt for the Goods. No Goods shall be returned to the Seller save with its consent and the Seller’s certificate as to the quality and condition of the Goods so returned shall be final and binding.

12.4In the event of the Customer purchasing the Goods by description, the provision of Section 13 of the Sale of Goods Act 1893 (which implies the term that the Goods shall correspond with their description) shall not apply to the Contract.

12.5The Seller makes and gives no warranty, condition or representation regarding the Goods save as expressly stated in writing by an officer of the Seller authorised for such purpose and it shall not be a condition of this Contract that the Goods supplied hereunder are fit for the purpose for which the Customer wants them whether or not this purpose has been made known to the Company and/or are of merchantable quality. The Customer accepts that prior to agreeing to purchase the Goods hereunder they have satisfied themselves as to their fitness for this purpose and as to their merchantable quality in regard to the use for which they require them and have not relied upon the Seller’s skill, judgement or representations, if any, before so satisfying themselves.

12.6The Customer represents to the Seller that the Customer buys the Goods from the Seller in the course of or for the purpose of a trade or undertaking carried on by the Customer and that the Customer does not deal with the Seller as a Consumer within the meaning within the meaning of the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995.

12.7The Customer hereby expressly agrees that the provisions of this Clause 7 are fair and reasonable in the circumstances.

 

13.   FORCE MAJEURE

13.1The Seller shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond the Seller’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or defaults of suppliers or subcontractors.

14.   OTHER

14.1Assignment and subcontracting:

(a)    The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract;

(b)   The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without prior written consent of the Seller.

14.2Notices:

(a)    Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery or commercial courier. Notices will not be validly served if sent by e-mail;

(b)   A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2(a); if sent by pre-paid first-class post or recorded delivery, at 09.00 am on the second Working Day after posting or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed;

(c)    The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14.3Severance:

(a)    If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected;

(b)   If any valid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

14.4Waiver:

(a)    A waiver by the Seller of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by the Seller to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy by the Seller shall preclude or restrict the further exercise of that or any other right or remedy.

14.5Third party rights:

(a)    A person who is not a party to the Contract shall not have any rights under or in connection with it.

14.6Variation:

(a)    Except as set out in these Terms & Conditions, any variation to the Contract, including the introduction of any additional Terms & Conditions, shall only be binding when agreed in writing and signed by the Seller.

14.7Governing law and jurisdiction:

(a)    The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Irish law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Ireland.

 

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