This is an Application and Agreement for credit and shall apply to all credit extended by Fortune Marketing. The credit applicant understands and accepts the following terms and conditions of sale:
Terms of sale are 30 days nett monthly. Agents or sales representatives of Fortune Marketing are not authorised to change or adjust credit terms without prior authorisation of the credit manager.
All goods remain the property of Fortune Marketing until payment in full is received.
The credit department has the ability to withhold orders from production and/or shipping if the applicant has allowed their balance to become past due.
Third party collection may result if a customer allows their balance to become 75 days past due.
Any claim for credit notes in respect of damage/short delivery to be notified to credit department in writing within seven days of receiving delivery.
The applicant agrees to bear all costs incurred in collecting any unpaid amounts including but not limited to legal fees, court costs on a solicitor/client basis.
Failure to comply with these Terms & Conditions may result in cancellation of credit privileges without notice.
The information given in this Application and Agreement is warranted to be true and correct and given for the purposes of obtaining credit.
1. Orders and Application of Terms
1.1 These general terms and conditions (“Terms and Conditions”) apply to all sales and/or supplies of goods and/or services including packaging and/or presentation (“Goods”) by Fortune Marketing, (“FM”), (a registered trading name of FM Marketing Limited) to any purchaser or potential purchaser (“Buyer”) until such time as other terms are notified by FM.
1.2 By placing an order with FM, the Buyer shall be deemed to have accepted these Terms and Conditions.
Where FM has agreed in writing other commercial terms of trade for the Goods which are the subject of any
order then these Terms and Conditions apply additionally.
1.3 No order submitted by Buyer shall be deemed accepted. FM may at its discretion accept or reject any order or part of any order. Orders are accepted by FM subject to availability of the Goods for delivery.
1.4 No order which has been accepted by FM may be cancelled by the Buyer except with the agreement in writing of FM and on terms that the Buyer shall indemnify FM in full against all loss (including loss of profit), costs (including the cost of all labour and materials used or contracted for), damages, charges and expenses incurred by FM as a result of cancellation.
1.5 Subject to 1.2, these Terms and Conditions shall prevail over all other terms or conditions relating to Goods whether written, or oral, implied or express (including any Buyer’s general terms and conditions). All other terms or conditions whether now or subsequently delivered are not binding on FM.
1.6 FM’s employees and agents are not authorised to make any representations concerning the Goods unless confirmed by FM in writing. Buyer acknowledges that it does not rely on any such representation which is not so confirmed.
1.7 Buyer may not without FM’s prior written consent assign, sub-contract, transfer or otherwise dispose of any of its rights or obligations under any accepted order.
1.8 FM may assign, sub-contract, transfer or otherwise dispose of any of its rights or obligations under any accepted order and shall be entitled to perform any of its obligations and/or exercise any of its rights through or jointly with any company or companies controlled by or under the same control (direct or indirect) as FM.
1.9 No quotation of FM shall constitute an offer. The Buyer’s order shall be the offer, which shall be accepted only on these Terms and Conditions.
2. Specification, Packaging and Use
2.1 Goods are suitable for use only within the countries for which they were intended. FM reserves the right to make modifications in specification without prior notice and reserves the right (without obligation or liability) to recall and modify or replace any Goods previously delivered.
2.2 All technical information and particulars given by FM are believed to be given as accurately as reasonably practicable but are not binding and do not form part of any contract with or representation to Buyer.
2.3 The packaging of the Goods shall be entirely at the discretion of FM. No assurance is given or representation made in respect of Goods replaced under 9 or 11 that such Goods and/or all its parts are new.
2.4 Buyer may not modify the Goods or resell the Goods except in the form and packaging supplied by FM,
and as expressly agreed with FM. The Goods are supplied for marketing. Detailed limitations may be set out in the Goods.
The price of the Goods shall be FM’s current price at the date of acceptance of the order by FM, available on request. Buyer shall bear the cost of any applicable sales, value added, customs and excise, or similar tax. FM reserves the right at any time prior to delivery to adjust the price to take account of increases in its costs incurred after acceptance of an order FM for materials, labour, transport rates, exchange rates or taxation and FM shall use reasonable endeavours to promptly notify Buyer of any such alteration in price. Buyer may cancel orders placed prior to notification of price increase by giving FM written notice to this effect within 7 days of notification of a price increase.
4.1 No discrepancy in delivery, volumes or specifications shall affect Buyer’s obligation to pay invoices issued by FM in respect of an accepted order. Goods shall be signed for on receipt. Any alleged discrepancy in delivery must be notified to FM in writing within 3 days of receipt of the Goods following which Goods are deemed accepted.
4.2 Buyer will notify FM within 3 days of receipt of the Goods of any excess or short quantity delivered and return the excess to FM.
4.3 Goods which Buyer is required or entitled to return under these Terms and Conditions or otherwise shall be returned to FM at Buyer’s cost.
4.4 Delivery shall take place on delivery of the Goods to Buyer’s premises or other agreed place of delivery, or upon first contact by the Buyer or the Buyer’s agent, representative, contractor or employee, whichever is sooner.
4.5 FM will endeavour to complete the contract or deliver the goods and/or provide the services within the time agreed (if any) and if no time is agreed, within a reasonable time, but it shall not be liable for any loss or damage whatsoever caused directly or indirectly by any delay in the completion of the contract or delivery of the goods and/or performance of the services.
5. Invoicing and Payment
5.1 Unless otherwise notified by FM in writing, all payments by Buyer for the Goods shall be made to FM within 30 days of the end of the month of invoice without any deduction, set off or withholding. Invoices for an order may be issued on or at any time after dispatch of the order. FM reserves the right to demand payment or bank guarantees in advance of dispatch.
5.2 Time of payment is of the essence in every contract. On failing to make full payment when due, the Buyer shall (without prejudice to any other rights and remedies of FM) become liable to pay to FM interest of the amount due at 3 per centum per annum above the base rate of AIB Bank plc on any overdue amount from the due date for payment until the date of actual payment whether before or after judgement. FM may at any time before the due date demand immediate payment if any other invoice or payment is late or outstanding or if FM’S credit limit for Buyer is exceeded. Credit limits shall be set and varied at FM’S discretion. Payment means receipt by FM of cleared funds in its nominated bank account. Payment shall be made by bank transfer or by cheque drawn on an Irish clearing bank unless otherwise agreed.
6. Risk and Title
6.1 The risk of loss or damage to Goods which are the subject of any order shall pass to Buyer upon delivery of such Goods.
6.2 The property (both legal and equitable) in the Goods shall not pass to the Buyer until:-
(i) the purchase price of the Goods has been paid in full; and
(ii) payment is made in full to FM of any sum which is at the date of the contract or may thereafter become due or owing from the Buyer to FM.
6.3 Buyer shall store Goods owned by FM in such a way that they are stored, insured and clearly identifiable as FM’s property.
6.4 Until receipt of payment in full FM shall be entitled to trace the proceeds of sale and any insurance proceeds received in respect of Goods. Such proceeds shall be separately banked by Buyer and held on trust for FM.
6.5 Where FM is unable to determine whether any goods are the Goods the Buyer shall be deemed to have sold all goods of the kind sold by FM to the Buyer in the order to which they were invoiced to the Buyer.
6.6 FM will have the right to maintain an action against the Buyer for the price of the Goods notwithstanding that property in the Goods has not passed.
6.7 Nothing in the contract will constitute the Buyer the agent of FM in respect of any re-sale of the Goods by the Buyer so as to confer upon a third party rights against FM.
7. Events of Default, Termination, Repossession, Suspension
7.1 If Buyer fails to make any payment to FM when due or otherwise breaches any contract with FM, enters
into bankruptcy, liquidation or receivership or any composition or arrangement with its creditors, has a receiver, administrator, or manager appointed over all or part of its assets, or becomes insolvent, or ceases to trade or seeks or obtains any statutory protection against creditors or if FM has reasonable cause to believe that any of these events is likely to occur, FM shall have the right, without prejudice to any other remedies:-
7.1.1 to enter without prior notice any premises where Goods owned by FM may be, and to repossess and
dispose of any Goods owned by FM so as to discharge any sums owed to FM by Buyer;
7.1.2 to require Buyer not to resell or part with possession of any Goods title to which is owned by FM; and
7.1.3 to cancel orders and/or withhold delivery of any undelivered Goods and stop any Goods in transit.
Subject to 4.2, any claims in respect of the Goods must be notified within 7 days of the date upon which Buyer became aware or ought to have become aware of the circumstances giving rise to the complaint. Any claims in respect of or apparent from the condition of the packaging of the Goods must be notified to FM within 30 days of delivery to Buyer. All claims not so notified are waived.
9. Warranty to Buyer
9.1 If Buyer alleges that Goods were defective at the time of delivery to Buyer, Buyer shall within 7 days of becoming aware of the alleged defect notify FM in writing of the alleged defects and shall return the Goods and packing to FM within 10 days of notification. Where valid claims for such defective goods are notified and returned to FM in accordance with these Terms and Conditions FM undertakes to arrange for the repair or replacement of such defective Goods free of charge or at its discretion for a refund of any purchase price paid by Buyer.
9.2 If Buyer or FM receives any claim that the normal intended use or possession of any Goods infringes
the intellectual property rights of any third party or is alleged for any other reason to be unauthorised or inappropriate for sale to the public Buyer shall immediately notify FM and FM shall at its option (a) change all or any part of any Goods; (b) accept return of the Goods in return for a full credit; or (c) replace the Goods with Goods of a similar type and function; or (d) confirm the invalidity of the claim or allegation.
10. Limitation of Liability
10.1 The warranty and remedy in Clause 9 are in lieu of all other terms, conditions and warranties express and implied statutory or otherwise (apart from implied terms as to title), including but not limited to any condition or warranty for, fitness for particular purposes or satisfactory quality and shall be the sole remedy available to the Buyer.
10.2 Save for death or personal injury due to the negligence of FM or liability for fraudulent misrepresentation, FM’s liability whether in contract, tort (including but not limited to negligence) or otherwise in respect of any order shall be limited to the sum of monies received from the Buyer in respect of that order.
10.3 FM shall not be liable for any indirect or consequential loss, damage, injury or expense including but not limited to loss of profits, goodwill or contracts.
11. Customer Warranty and Service
FM shall provide no warranty in respect of the goods, and any warranty to be provided to the Buyer shall be furnished directly by the ultimate manufacturer of the products.
12. Force Majeure
FM shall be entitled to cancel or rescind any order and shall not be liable for any loss or damage if its ability to perform its obligations under the order is in any way adversely affected for any reason not within FM’s reasonable control (“event of Force Majeure”) including without limitation the failure by FM’s suppliers to fulfil their obligations, the denial or cancellation of necessary permits or licences or substantial changes in duties, exchange rates or costs of performance.
13. Confidential Information
13.1 Without prejudice to any separate Non Disclosure Agreement between FM and Buyer, Buyer shall not,
without FM’s written consent, disclose to any third party any secret or confidential information supplied by FM to Buyer (including any information relating to prices or specifications) unless (i) that information is in the public domain otherwise than through breach of any obligation of confidence, or (ii) required by a court of competent jurisdiction or for the purpose of court proceedings. Buyer shall notify FM immediately of any such disclosure.
13.2 Buyer shall not copy or reproduce any catalogues, drawings, specifications, or other material supplied by FM.
14. Export Regulations
Buyer confirms that it will not export or permit export of Goods, or use or permit the use of Goods, other than in accordance with applicable laws export and customs regulations.
15. Cancellation and Returns
No cancellation or any order or return of any Goods by Buyer shall be accepted except as set out here or as expressly agreed in writing by FM.
No failure or delay by of FM in exercising any of its rights under these Terms and Conditions shall operate as a waiver nor shall any exercise of any right preclude any other or further or repeated exercise of that or any other right.
17 Intellectual Property and Trademarks
17.1 All copyright, patents, design rights, trademarks and any other proprietary rights in the Goods remain the property of FM or its licensors.
17.2 No rights are granted to Buyer to disassemble, decompile, reverse engineer, merge or combine with other code, translate, adapt, vary or modify any software forming part of the Goods except as permitted by law.
17.3 The Buyer shall not without FM’s prior consent allow any trade marks of FM, any group company or other words or marks applied to the Goods to be obliterated, obscured or omitted nor add any additional marks or words.
17.4 No use shall be made of the FM trade names or logos on any materials or point of sale displays in connection with Goods without the prior written approval of FM.
18. Law and Jurisdiction
These Terms and Conditions and any commercial or other terms agreed by FM and Buyer shall be subject to and construed under Irish Law and the Buyer and FM submit to the non-exclusive jurisdiction of the Irish Courts.
If any provision hereof is held by any court of competent jurisdiction to be invalid or enforceable in whole or part the validity of the remainder of such provision and all other provisions of these Terms and Conditions shall not be affected.
19.1 Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to that other party at its registered office or principal place of business.
19.2 In relation to all obligations of the Buyer under the contract, the time of performance is of the essence.