J. MCKENNA LIMITED - CONDITIONS OF SALE
AGREEMENT FOR SUPPLY OF GOODS
1.1 The Customer's order for goods as described overleaf (the “Goods”), constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions and the Terms and Conditions provided to the Customer and agreed to upon opening their account with J. McKenna Limited (the “Supplier”). These Conditions are supplementary to the Terms and Conditions and where a conflict occurs the Terms and Conditions shall take precedence.
1.2 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Customer is responsible for ensuring that the terms of the order and any applicable specification submitted by the Customer are complete and accurate. A quotation for the goods given by the Supplier shall not constitute an offer. The order shall only be deemed to be accepted when the Supplier confirms the acceptance of the order, at which point the Contract shall come into existence.
1.3 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them.
DELIVERY, TITLE AND QUALITY
1.4 Where the Goods are: (a) to be delivered the Supplier shall deliver the Goods to the location set out in the order or such other location as the parties may agree at any time after the Supplier notifies the Customer that the Goods are ready; or (b) to be collect from McKennas Yard or such other location as may be advised by the Supplier prior to delivery within 3 business days of the Supplier notifying the Customer that the Goods are ready. Delivery is completed on the completion of loading of the Goods at McKennas Yard or unloading if delivered.
1.5 Quotations are valid for 14 days, subject to stock availability. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by force majeure or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
1.6 Goods will be supplied to nearest standard unit of that product. If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer within 48 hours that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
1.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment will constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
1.8 The risk in the Goods shall pass to the Customer on completion of delivery. Title to the Goods shall not pass to the Customer until the earlier of: (a) the Supplier receives payment in full (in cash or cleared funds) for the Goods; and (b) the Customer resells the Goods, in which case it does so as principal and not as the Supplier’s agent; and title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
1.9 Until title to the Goods has passed to the Customer, the Customer shall: (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify the Supplier immediately if it becomes subject to any debt collection proceedings; and (e) give the Supplier such information as the Supplier may reasonably require from time to time relating to: the Goods; and the ongoing financial position of the Customer.
1.10 At any time before title to the Goods passes to the Customer, the Supplier may: (a) by notice in writing, terminate the Customer's right to resell the Goods or use them in the ordinary course of its business; and (b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product 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.
1.11 The Supplier warrants that on delivery the Goods shall conform in all material respects with their description and any applicable specification and be free from material defects in design, material and workmanship. If the Customer gives notice in writing to the Supplier within 3 days of delivery or the earliest possible date of discovery that some or all of the Goods are damaged or defective the Supplier shall take such action as is set out in the Terms and Conditions.
1.12 The Supplier accepts no responsibility or liability where the Goods have been affected by misuse, neglect, accident, improper storage, installation, repair or alteration.
1.13 The responsibility for proper installation and use of the Goods resides with the Customer and they should ensure in particular that: (a) floors be installed by professionals in accordance with best industry standards and not laid on concrete with a moisture content of 3% or more; and (b) doors and plywood installation should be sealed appropriate on all edges. Returns of non stock items, special orders, slates, paster and bagged products will not be accepted.
PRICE AND PAYMENT
1.14 The price of the Goods shall be the price set out in the order, or, if no price is quoted, the price set out in the Supplier's established price list in force as at the date of delivery.
1.15 The Supplier may, by giving notice to the Customer at any time up to the day of delivery, increase the price of the Goods. The price of the Goods excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice.
1.16 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. The Customer shall pay each invoice submitted by the Supplier upon delivery (or collection as the case may be) or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer and time for payment shall be of the essence of the Contract. Interest will be payable on any overdue amounts on the amount of any such overdue amounts together with interest thereon at the rate of 8% per annum calculated on the unpaid amount, from the due date until payment date.
1.17 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding.
1.18 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
1.19 Nothing in the Contract limits any liability which cannot legally be limited, including liability for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; breach of the terms implied by section 10 of the Sale of Goods and Supply of Services Act 1980; or defective products under the Defective Products Act 1991.
1.20 Subject to clause 1.19, the Supplier's total liability to the Customer shall not exceed the value of the Goods.
1.21 Subject to clause 1.19, the following types of loss are wholly excluded: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss
1.22 The sale of goods under these conditions shall be governed and construed in accordance with Irish law and each party hereby submits to the exclusive jurisdiction of the Irish courts for the resolution of disputes hereunder.