TERMS & CONDITIONS OF SALE

General
Cavanagh Foundry Limited (“the Company” which expression shall include its subsidiaries and associated companies) contracts with its customers (“the Customer”) subject to and upon the following terms and conditions (the “Terms and Conditions”) which shall exclusively govern the sale of all the Company’s goods (the “Goods”) notwithstanding any terms or conditions, whether oral or written, or purported variations contained in any order or other correspondence submitted by the Customer to the Company save to the extent that such variation is expressly agreed and accepted in writing by a duly authorised officer of the Company.

1.2 All Customer orders are subject to acceptance by the Company and the Company reserves the right to subcontract in fulfillment of the order or any part thereof.
1.3 Save as hereinbefore provided no officer, employee or agent of the Company has authority to vary, add to or depart from the Terms and Conditions hereof or make any representations in relation to the Goods sold hereunder or the contract made herein.
1.4 Catalogues, price lists and other advertising material are only indications of the type of Goods offered and shall be subject to variation from time to time by the Company and shall not constitute an offer to, or be binding on, the Company.
1.5 Location of manufacture of the Goods as per catalogues and other advertising material is indicative that such Goods are from time to time manufactured at said location but not necessarily always. Clear written clarification must be sought by the Customer on this point where such detail may form part of a sale.

2. Prices
2.1 The prices quoted by the Company or stated in the Customer contract, being the contract for the sale and purchase of the Goods incorporating these Terms and Conditions (hereinafter called the “Contract”), is based on the cost to the Company of material, fuel, power, transport and labour at the date of quotation or acceptance of the order (whichever is earlier). Prices shown on quotations and letter acknowledgements are given in good faith by the Company and best endeavours will be made by the Company to maintain the price quoted.
2.2 For the avoidance of doubt, prices charged will be those ruling at time of despatch.
2.3 It is the Customer’s responsibility to ensure that his order is correctly reflected on the sales docket/order form and his signature thereon shall be confirmation that the order as recorded in writing is correct. The Company shall have no liability in respect of errors or omissions on such orders. Upon delivery to the Customer, the Customer must ensure that the Goods have been unpacked and that they are in a satisfactory condition and his signature on the delivery documentation shall be confirmation of this.

3. Payment
3.1 Subject to credit being approved, accounts are due for payment not later than 60 days following the month of despatch unless otherwise agreed in writing, otherwise payment must be received by the Company before delivery. Time for payment is of the essence. No payment shall be deemed to have been received until the Company has received cleared funds.
3.2 When deliveries are spread over a period each consignment will be invoiced as despatched and each months invoices will be treated as a separate account and be payable accordingly.
3.3 Failure to pay for any Goods or for delivery or instalment shall entitle the Company to suspend further deliveries and work both on the same order and or any other order from the Customer without prejudice to any other right the Company may have. The Company shall reserve the right to charge interest on overdue accounts at the rate of 2% per month.
3.4 Monies etc. owing by the Company to a Customer cannot be offset against payments due to the Company (contra A/C) by such Customer unless agreed in advance.
3.5 All amounts payable to the Company are exclusive of VAT, and shall be paid in cleared funds and shall be:
3.5.1 paid in Euro by bank draft/cheque or to the Company’s designated bank account;
3.5.2 include in addition any value added tax which may be payable; and
3.5.3 made in full without deduction of any taxes, charges and other duties that may be imposed.

4. Delivery
4.1 The Company shall endeavour to keep to any despatch or delivery date. Time shall not be of the essence and the Company shall not be liable in any way for any loss of trade or profits or any other loss or consequence occurring to the Customer in the event of any delivery being frustrated or delayed.
4.2 No delay shall entitle the Customer to reject any delivery or any other order from the Company or to repudiate the Contract or the order.
4.3 Unless otherwise agreed by the Company in writing, collection of Goods by the Customer from the Company’s premises or delivery of Goods to the address specified by the Customer, shall constitute a delivery of the Goods to the Customer whereupon all risks, whether insurable or not, relating to the Goods shall pass to the Customer.

5. Liability
5.1 These Terms and Conditions set forth the full extent of the Company’s obligations and liabilities in respect of the supply of the Goods.
5.2 The Company shall not be liable under these Terms and Conditions or any collateral contract, or in tort or otherwise for any direct, indirect or consequential loss, for any loss of profit, or for loss of profits on contracts, damage or expense of any kind whatsoever or howsoever caused and whether or not the Company has been advised of the possibility of such loss arising out of or in connection with the Goods and these Terms and Conditions and whether sustained by the Customer or any other person.
5.3 Nothing in these Terms and Conditions shall exclude liability for death or personal injury resulting from the negligence or negligent misrepresentation of the Company, its employees, sub-contractors, agents or its sub-contractors.
5.4 In the event that any exclusion contained in these Terms and Conditions shall be held to be invalid for any reason and the Company becomes liable for loss or damage that may lawfully be limited, such liability shall be limited to the price paid by the Customer to the Company for the Goods which give rise to the claim, plus expenses of customs, taxes, freight and insurance.
5.5 As a condition precedent to recovery for quality defects or a shortage in any consignment of Goods, every claim for such alleged quality defects or shortage must be made by the Customer within 5 days after the receipt of such Goods by or on behalf of the Customer. In addition, the Customer must afford the Company the opportunity to inspect the Goods or workmanship if so requested by the Company for the purpose of assessing such a claim.
5.6 If notwithstanding the foregoing, liability can be implied on the Company, the Company’s aggregate liability for any claim, whether in contract, tort (including negligence) or otherwise, for any loss or damage arising out of or in connection with or resulting from the manufacture, sale, delivery, re-sale, replacement or use of any of the Goods, shall in no case exceed the price paid by the Customer to the Company for the Goods which give rise to the claim, plus expenses of customs, taxes, freight and insurance. Nothing contained in this paragraph shall by implication create any liability or obligation on the part of the Company or effect or diminish any disclaimer or limitation elsewhere contained herein.

6. Title
6.1 The property and title in all the Goods supplied by the Company to the Customer whether arising out of this or any other contract shall, notwithstanding delivery and passing of risk, remain in the Company until the entire of the purchase price in respect of such Goods and all other sums on any account due by the Customer to the Company have been paid in full.
6.2 For so long as the title and property in the Goods remains in the Company, the Customer shall store the Goods safely in suitable storage and so as to clearly show them to be the property of the Company and clearly identifiable as the Company’s property with all identifying marks intact and legible. The Customer shall insure the Goods from the date of delivery at its own expense for their full replacement value against all risks. This provision shall not entitle the Customer either to refuse or delay payment or to require the Company to accept the return of the Goods on the ground that the title and property in the Goods remains in the Company as aforesaid. In the event of non debt payment, liquidation/receivership of the Customer, the Company reserves the right to enter into the premises in which the Goods are stored, repossess the Goods whether installed, compounded or otherwise held even if the Customer has sold said Goods onward to a third party.

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

7. Cancellation or Return of Goods
7.1 In the event that the Customer cancels all or any part of a contract, the Customer shall pay for such work as may have been undertaken or materials in fulfilment or part fulfilment of a special order. When cancellation involves Goods designed, made or ordered especially for the Customer, then the Customer will be liable for any costs incurred by the Company in respect of such cancellation.
7.2 Goods may only be returned with the Company’s prior written consent. On such return they will be credited at the invoiced price less handling charges. Consent will not be given to return Goods made especially to orders.

8. Intellectual Property Rights
8.1 The Customer shall indemnify the Company against all actions, costs (including the cost of defending any legal proceedings) claims, proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Company with the Customer’s instructions, whether express or implied.
8.2 The Customer acknowledges that any and all of the copyright, trade marks, trade names and other intellectual property rights subsisting in or used in connection with the Goods shall be and shall remain the sole property of the Company or such other party as may be identified thereon or therein (the “Owner”). The Customer shall not at any time in any way question or dispute the ownership by the Company or the Owner thereof.

9. Tolerances and Tests
9.1 Gauges, weights, dimensions, quantities and sizes will so far as possible be adhered to but reasonable margins shall be accepted by the Customer who shall not be entitled to reject any Goods or to replacement of any Goods on the ground that they are not precisely as specified. Unless otherwise specifically agreed all tests and test pieces whatsoever required by the Customer will be charged extra. Tests and inspections shall take place under the Company’s standard testing arrangements at the Company’s works or otherwise nominated by the Company. Where a quantity of Goods has been supplied the resultant failure of one such Good under test will not mean that all such Goods are defective or unsuitable and other tests may be deemed necessary by the Company. All tests are subject to normal tolerances and must be carried out with the Company’s consent and witnessed by a person nominated by the Company.

10. Recognised Standards and Product Application
10.1 Only recognised standards applicable to the Goods will be accepted by the Company (EN124) regarding performance, dimensional detail, etc. Where the Company sells Goods as heavy medium or light duty in isolation, these references have no connection with recognised standards. Such general terms are traditional references, but the Company cannot be held liable for performances of the Goods described this way. Where a Good is sold by the Company as complying with part of a recognised standard it does not mean that the Good meets every requirement of that particular standard. Only when it is stated clearly by the Company that all requirements of a recognised standard are met shall it be so. The Company will not accept tests, etc. carried out without its knowledge or consent, and all tests must be witnessed by a person nominated by the Company. Goods not sold fit for any particular purpose and the location/use of Goods is the responsibility of the user/Customer.

11. Warranty and Limitations
11.1 The rights (if any) guaranteed to the Customer by virtue of sections 12 to 15 (inclusive) of the Sale of Goods Act, 1893 (as amended) are in no way prejudiced by these Terms and Conditions, save to the extent permitted by law and to the extent that such applicable law may not be contracted out of by the parties. All other warranties, conditions and representations, express or implied, statutory or otherwise, in relation to the quality or fitness for any particular purpose of the Goods are hereby excluded.
11.2 The Customer hereby acknowledges that he has not been induced to enter into this Contract by any representation as to the quality or fitness for any purpose or any representation or warranty as to performance or other attributes of the Goods. The description of the Goods given by the Company has been given by way of identification only and such description shall not constitute or be deemed to constitute in this Contract a sale by description.
11.3 The Customer shall be responsible for any expenses of transportation, labour or other costs which may be involved in relation to any claim hereunder, save to such extent as the Company may agree in writing in any particular case.
11.4 No warranties, implied, statutory or otherwise shall extend to any Goods which have deteriorated because of age or which have been accidentally damaged or which have been repaired, altered, improperly handled neglected or used in any way so as to affect adversely their utility or reliability or quality or uses under normal conditions. The Customer shall be responsible for such periodic maintenance of Goods as may be necessary as a result of normal wear and tear or deterioration because of age.
11.5 In the event of there being any dispute as to whether or not the Goods are defective at the time of despatch or as to the cause of any defect the Company shall be entitled to apply or have applied such tests to the Goods as may be necessary but the Company shall not be responsible for any loss occurring or for any damage to the Goods or to any other goods occasioned by or in the course of such tests.
11.6 Subject always to the express exclusion in Clause 11.1 hereof, if by reason of any defect in the Goods there shall be a breach of any implied term, condition or warranty applicable thereto then, provided the Customer has furnished within seven days of the time when the Customer discovers, or ought to have discovered, the defect, all details of the defect specifying the date and place of purchase, the date on which the Goods were dispatched, the circumstances in which the alleged defects became apparent and such further details as may be relevant to the claim to the Company, by prepaid ordinary post to the Sales Manager, the Company shall at its option replace or repair the relevant Good or issue such credit as the Company thinks fit, if any, to the Customer.

12. Force Majeure
12.1 The Company shall not be liable for any loss, damage, injury or expense whatsoever incurred by the Customer arising or resulting from acts of God, Government orders, strikes, lockouts or other industrial action, inability to secure labour, materials or supplies at commercially justifiable rates, accidents, plant or vehicle breakdown, war, civil commotion or any other circumstances (whether of the foregoing class or not) beyond the control of the Company and every Contract between the Company and the Customer is subject to suspension, variation or cancellation by the Company as may be necessary due to force majeure aforesaid.

13. Severability
13.1 Each Term and Condition contained herein shall be regarded as creating separate and severable and enforceable terms and obligations under the Contract and in the event that any one shall be adjudged to be void or unenforceable for whatever reason the said Term or Condition shall be given effect to in its reduced or modified form as may be decided by any court of competent jurisdiction and such voidness or unenforceability shall not affect the validity of the remaining Terms and Conditions hereof.
13.2 Paragraph headings in these Terms and Conditions are for ease of reference only and shall have no legal effect whatsoever.

14. Assignment
14.1 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14.2 The Company may assign the Contract or any part of it to any person, firm or company.

15. Applicable Law
15.1 The Contract and these Terms and Conditions and all other express terms of every agreement between the Company and the Customer concerning the supply of Goods shall be governed by and construed in all respects in accordance with the laws of Ireland and the Customer agrees to submit to the non-exclusive jurisdiction of the Irish Courts in relation to any matter arising hereunder in dispute. If any provision of these Terms and Conditions shall be determined by a Court of competent jurisdiction to be void or unenforceable the other terms and conditions shall remain unaffected and enforceable.