1. GENERAL
Trouw Aquaculture Ltd., (the seller) contracts with every other party (the buyer) subject to and upon the terms and conditions of this Sale Contract which shall govern the sale of all the seller's goods and products exclusively notwithstanding any purported variation contained on any order or other written correspondence submitted by the buyer to the seller unless such variation is agreed in writing by duly authorised Officer of the seller.
2. TECHNICAL INFORMATION
1. All technical information relating to the goods, subject of the order particularly the content, composition and weight are approximate unless confirmed otherwise.
2. All specifications, quotations, illustrations, descriptions, leaflets or samples relating to the seller's goods are copyright and may not be passed on to any third party or copied, imitated or used for the manufacture of the same or similar products and must be returned to the seller upon demand and the buyer undertakes not to disclose to any third party any technical information supplied by the seller except with the expressed permission of the seller. Title to all such specifications, quotations, illustrations, descriptions, leaflets or samples remain at all times the property of the seller.
3. The buyer warrants that the manufacturer of the goods to its order or design will not involve the seller in the infringement of any patent, registered design, copyright or trademark or any or other similar rights, and the buyer shall indemnify the seller against all claims and expenses incurred by the seller by reason of any such infringements or alleged infringements.
3. PRICES AND TERMS OF PAYMENT
1. The prices charged by the seller for goods shall be those deemed by the seller to be ruling at the date of delivery or as otherwise agreed in writing between duly authorised representatives of the parties.
2. All invoices shall be settled on or before the end of the month following the month of delivery unless otherwise agreed in writing. If any invoice is not settled on or before the due date, the buyer agrees to pay interest which shall accrue on a daily basis from the due date to the date of receipt of payment on the principal sum outstanding from day to day at a rate of 1.5% per month or as subsequently agreed in writing by the seller.
3. Should any sum be overdue for payment by the buyer to the seller all other payments owing to the seller shall immediately become due for payment.
4. The place for payment is deemed to be the address of the seller as printed on the invoice or statement.
5. Without prejudice to the foregoing the seller may require the buyer to make payment in advance of delivery.
6. The seller may at any time require the buyer to advance adequate security for the payment of all amounts due or to become due.
7. When payment is to be paid by installments the failure of the buyer to pay any installment on the due date shall enable the seller to treat such failure as a repudiation of the entire contract and to recover damages including consequential loss for such breach of contract.
4. DELIVERY AND CARRAIGE
1. All carriage charges for goods despatched from the seller's works to destinations within the Republic of Ireland shall be for the account of the buyer and goods will be forwarded for such methods of transport as the seller shall deem fit and the risk of loss or damage to the goods shall pass to the buyer at the time the goods are consigned to the carrier. In effect in the contract of carriage the seller shall be deemed to be acting as agent for the buyer and in the event of loss or damage to the goods in transit, the seller shall take reasonable steps to pursue a claim for such loss or damage against the carrier on the buyer's behalf provided that notification of the loss or damage shall have reached the seller within seven days of the damage or loss arising. The seller shall not be liable to take any proceedings against the carrier. Subject to the provisions above, if liability is admitted by the seller, the seller's liability shall in any event be limited to the value of the goods lost or damaged.
2. Should the buyer refuse to accept goods manufactured in accordance with the contract or be unable to take delivery when the goods are ready to be delivered, the seller reserves the right to invoice the buyer for same and for all cost incurred by the seller as a consequence of such refusal or inability on the part of the buyer as if its part of the contract had been fulfilled in every way.
3. The seller shall use its best endeavours to effect delivery by the date specified in the quotation or order of acknowledgement but such date is intended as an estimate only.
5. GUARANTEE
1. The seller does not accept any liability for any loss or consequential loss arising from the outbreak of cataracts in the purchaser's fish from February 1998. For the purposes of these Terms & Conditions of Sale the term cataract is defined as - a posterior lens pathology not of pathogenic or traumatic origin, typically bilateral and originating in the
posterior cortical area of the lens and are the type experienced in Ireland post Smolts in 1995,1996 and 1997. The vendor cannot warrant that the inclusion or exclusion of any feed ingredients can prevent the formation or mitigate the severity of cataracts as defined above.
2. If any goods supplied shall prove unfit for the purpose for which it is intended within a period of three months from delivery and the buyer notifies such defect to the seller in writing within fourteen days of the defect becoming apparent, the seller shall replace at its option the good or any part thereof provided that the seller shall be under no liability in respect of any defect if:-
a) The defect has arisen through the default of the buyer or
b) The goods have not been stored or protected in the proper manner
c) The buyer or any other person has intermeddled with the goods
3. This clause 5 is subject to limitation by terms expressly negotiated between the parties and contained in a separate notice.
4. The guarantee aforesaid is in lieu of any other condition or warranty as to the quality or fitness or purpose of any goods whether implied by common law or statute or otherwise, the seller shall in no such circumstances be liable for any loss or damage whether by way of loss of production, loss of profits, wastage of labour or materials or otherwise howsoever caused. The buyer furthermore acknowledges, for the purposes of the Sale of Goods and Supply of Services Act, 1980 that he is purchasing the goods from the seller in the course of its/his business.
5. This guarantee immediately terminates upon transfer of title from the buyer to a third party.
6. Any statements made about the seller's goods by the seller, its servants or agents, whether orally or in writing are intended for guidance only and the buyer shall not place any reliance thereon without specific enquiry and without ensuring that any matter or concern to it/him is specifically mentioned in the quotation acknowledged, acknowledgement order or any other contractual document.
7. The seller may refuse to replace defective goods as long as the buyer has not performed its/his obligations.
6. TITLE
1. Title to property in and ownership of the goods shall remain with the seller until payment thereof is received in full. Until payment in full is received:-
a) The buyer shall hold the goods as bailee of the seller and shall, if the seller so requires, keep the goods marked and/or separately stored as it shall direct so as to be clearly identifiable as the property of the seller.
b) If the goods are mixed with or incorporated or processed or consumed at the direction of the buyer into other articles, the new article or articles containing any part of the goods shall be the sole and exclusive property of the seller unless the goods are mixed with goods the property of a person other than the buyer. In that case such new article or articles shall be owned in common by the seller with such other person in proportion to the respective invoice price of the goods contributed by each.
c) The goods may be sold by the buyer to third parties as agent of the seller, in such event the proceeds of such sale shall be held by the buyer in trust for the seller, and in any case so as to be clearly identifiable as belonging to the seller. The buyer shall, whenever so required by the seller assign to the seller all its rights against such third parties in connection with the goods.
d) The seller shall be entitled at its option to retake possession of the goods supplied (whether or not such goods have been fixed to or incorporated in any other goods) and for that purpose to enter upon any premises of the buyer.
2. Notwithstanding sub-clause 1, the seller shall have the right at any time to give notice to the buyer offering a transfer of title in any of the goods and in such event the buyer shall be obligated to accept such offer.
3. Any dispute between the buyer and the seller shall be referred to arbitration by an arbitrator who shall in default of agreement between the parties be appointed on the application of either party to the Presidency of the Law Society of Ireland, to be appointed from a list of arbitrators approved by the President of the Incorporated Law Society and for this purpose the provisions of the Arbitration Acts of 1954 - 1980 shall apply.
7. JURISDICTION
The contract shall be governed by the law of Ireland.