Definitions and Interpretations
The following words and or expressions shall, for the purposes of these Terms and Conditions, have the following meanings: (‘Business Day’) any day other than a Saturday, Sunday or bank or public holiday; (‘Commencement Date’) the earlier of (a) the date of execution of the Contract or (b) the date on which services are first supplied or goods are first delivered to FEXCO in accordance with a Supply Agreement; (‘Conditions’) these terms and conditions of purchase or supply; (‘Confidential Information’) any and all information of any nature in whatsoever form relating to FEXCO or a member of the FEXCO Group or any of their businesses as carried on at the Commencement Date, and FEXCO’s (including any FEXCO Group member’s) customers, competitors, shareholders, associates, prospective business(es), technical processes, computer software (both source code and object code), IPR or finances, or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into the Supplier’s possession by virtue of its entering into a Contract or the provision of Goods and/or Services or which FEXCO regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information; (‘Contract’) any contract between FEXCO and the Supplier for the sale and purchase of Goods and/or Services comprising either: a Supply Agreement, the Conditions and any relevant P.O. and these Conditions and in either case as formed in accordance with Condition 2; (‘Deliverable’) any deliverable specified in the Supply Agreement; (‘Delivery Address’) the address or addresses set out in the Supply Agreement or P.O.; (‘Delivery Date’) the date or dates set out in the Supply Agreement or P.O., or if no date or dates are set out, within 30 days of the Commencement Date; (‘Expiry Date’) the expiry date set out in the Supply Agreement; (‘Fees’) means the fees and charges specified in the Supply Agreement; (‘Goods’) any goods which the Supplier provides to FEXCO, (including without limitation any of them or any part of them) under the Contract which includes any Goods as specified in the Supply Agreement; (‘Good Industry Practice’) good standards, practices, methods and procedures conforming to a degree of skill and care, diligence, prudence and foresight, which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances; (‘IPR’) patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world; (‘FEXCO’) FEXCO Unlimited Company t/a FEXCO (a private unlimited company incorporated in Ireland) with registration number 083934 and registered office FEXCO Centre, Iveragh Road, Killorglin, Co Kerry; (‘FEXCO Group’) any subsidiary or holding company of FEXCO or any subsidiary of a holding company of FEXCO and the terms “subsidiary” and “holding company” shall have the meaning as set out in s. 7 and 8 of the Companies Act 2014 (and any statutory modification or re-enactment thereof); (‘FEXCO Materials’) means all Materials owned, created by or licenced to FEXCO; (‘Materials’) means all Deliverables and records, reports, text, leaflets, sketches, notes, papers, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, products, software, and all other materials in whatever form, including but not limited to hard copy and electronic form; (‘Policies’) all of FEXCO’s policies, including (without limitation), those on health and safety, site security and corporate social responsibility; (‘P.O.’) FEXCO’s purchase order in respect of Goods and/or Services; (‘Services’) any service performed by the Supplier to the requirements of and at the request of FEXCO, (including without limitation any of them or any part of them) under the Contract including any services specified in the Supply Agreement; (‘Specification’) means the written specification agreed between the parties; (‘Supplier’) the entity named as the supplier in the Supply Agreement; (‘Supplier Materials’) means all Materials developed by the Supplier or its agents, sub-contractors, consultants and employees for the purpose of the Contract whether before or after the Commencement Date; (‘Supply Agreement’) FEXCO’s written instructions for the purchase of Goods and/or Services, together with any schedules or supplementary documents expressly incorporated therein, or special terms agreed in writing between the parties; (‘writing’) excludes communications by way of electronic mail.
2.1 Unless expressly agreed otherwise in advance, in writing, by both parties, the Contract excludes all other terms and conditions, including without limit any terms and conditions, which the Supplier purports to apply under any acknowledgement or confirmation of order, quotation, specification, delivery note, invoice or any similar document whether or not such document is referred to in the Contract.
2.2 Each quotation for the Goods and/or Services shall be deemed to be an offer by the Supplier to sell the Goods and/or Services on the terms of the Contract. All quotations provided by the Supplier, including without limit, the price provisions, will remain open for a minimum of 60 days from the date they were provided.
2.3 If there is any conflict between any terms contained within any Supply Agreement, the Conditions and/or any P.O., then such conflict shall be resolved in the following order of priority of precedence:
2.3.1 the Supply Agreement;
2.3.2 the P.O.;
2.3.3 the Conditions.
Provision of the Goods and/or Services
3.1 The Supplier will provide to FEXCO the Goods and/or Services (i) in the quantities and at the quality specified in the Contract; (ii) in accordance with the Specification; and (iii) in accordance with the description of the Goods and/or Services specified in the Contract. This is a condition of the Contract which allows FEXCO to terminate for material breach if the Supplier fails to meet it.
3.2 The Supplier shall promptly provide FEXCO with any information reasonably requested relating to the supply of Goods and the provision of Services under the Contract.
3.3 The Supplier will comply with the Policies relevant to the supply of Goods and/or Services notified to it from time to time.
3.4 FEXCO may, from time to time, make changes in the scope of the Services or Specification through additions, deletions or other revisions to the scope of the Services, nature of the Goods or Specification, including the right to make changes in the method or manner of performance of the Services or delivery of the Goods, including the scheduling of completion of the Services or the Contract. All such changes shall be authorised in writing by FEXCO. If the change in the scope of the Services or nature of the Goods significantly increases or decreases the cost of or the time for performance, an equitable adjustment shall be made and the Contract modified accordingly.
4.1 The Supplier hereby undertakes and covenants with FEXCO that it shall not and will procure that each of its employees, servants or agents will not (save as may be required by law) at any time divulge, communicate, photocopy, take away, use or disclose by any manner any Confidential Information.
5.1 In return for the supply of the Goods and/or Services and for the performance of the Contract FEXCO shall pay the Fees on the terms of the Contract after receipt of invoice from the Supplier.
5.2 All invoices must be sent to the address specified by FEXCO, clearly state the P.O. number and include all required supporting documentation.
5.3 Unless otherwise stated in the Supply Agreement or P.O., invoices will be paid 30 days from receipt, provided all required supporting documentation is included and there are no open queries with the invoice. Queried invoices will be paid 30 days from the date of resolution of the final query.
5.4 On payment by FEXCO of the invoice, the Supplier expressly waives and releases any and all liens or claims on any of the Goods charged for therein.
5.5 Value Added Tax (‘VAT’), where applicable, will be shown separately on all invoices.
5.6 The total invoice amount shall be deemed to include all taxes (other than VAT), levies & duties of any kind and, where applicable, all packaging, delivery and insurance.
5.7 Unless otherwise agreed in advance, in writing, by FEXCO, all Supplier expenses in connection with the provision of Services will be borne by the Supplier. To the extent that it is expressly agreed that FEXCO will reimburse Supplier expenses, these must be compliant with the terms and conditions of FEXCO’s Supplier Expense Policy.
6.1 The Goods and/or Services shall be delivered or performed, without any extra charge in addition to the agreed price, to FEXCO, to the Delivery Address and, unless otherwise requested by FEXCO in writing, shall be delivered or performed (as the case may be) on or by the Delivery Date. The Supplier will notify FEXCO promptly of any anticipated or actual late or incomplete deliveries which may or which have occurred.
6.2 Failure, by the Supplier, to supply the Goods and/or Services, to FEXCO, by the Delivery Date will permit FEXCO to terminate the Contract for material breach.
6.3 Unless agreed in writing that the Goods are to be off-loaded by FEXCO, the Supplier shall off-load the Goods at its own risk and as directed by FEXCO.
6.4 The Supplier shall ensure that:
6.4.1 Goods are marked in accordance with FEXCO’s instructions (and any applicable laws or requirements of the carrier) and properly packaged and stored so as to reach their destination in an undamaged condition;
6.4.2 Goods deliveries should be accompanied by a delivery note, which shows the details of the Supplier, details of the Goods, the number of packages and contents; and
6.4.3 it has & maintains in force during the term of the Contract set out in Condition 9 (Term), all licences, permissions, authorisations, consents and permits needed to manufacture (where applicable) and supply the Goods and/or Services in accordance with the terms of the Contract.
6.5 The Supplier may not deliver the Goods or perform the Services by separate instalments unless specifically agreed in writing by FEXCO.
6.6 Risk in and ownership of the Goods shall pass to FEXCO on delivery, with full title guarantee free from any encumbrances, except where the Goods are defective.
7.1 FEXCO allows the Supplier to use any IPR in any FEXCO Materials provided to it by FEXCO only for the purposes of performing the Contract. The Supplier will have no other rights in respect of any IPR in any FEXCO Materials.
7.2 In consideration of the Fees, the Supplier assigns to FEXCO with full title guarantee and free from all third party rights, all its right, title and interest in and the IPR of the Supplier in any Supplier Materials.
7.3 The Supplier shall indemnify the FEXCO Group for all costs, expenses, liabilities, losses, damages, claims, demands, proceedings, judgements and reasonable legal costs, which the FEXCO Group incurs or suffers in respect of any claim brought against it by any third party during or after the end of the Contract claiming that possession, use or resale by FEXCO of the Goods and/or Services infringes a third party’s IPR.
Warranties and Undertakings
8.1 The Supplier warrants and undertakes to FEXCO that:
8.1.1 all information communicated to FEXCO by the Supplier in connection with the Contract and, where applicable, any tender process relating to the Contract is true, complete and accurate in all material respects;
8.1.2 the Goods and/or Services will correspond in every respect with the Contract and any requirements for the Goods and/or Services agreed by FEXCO and the Supplier in writing;
8.1.3 the Goods will be of satisfactory quality and fit for purpose;
8.1.4 the Goods will be free from defects in design, material and workmanship;
8.1.5 the Goods shall comply with all applicable laws and industry codes;
8.1.6 the Services shall be performed by appropriately qualified and trained personnel with the necessary expertise;
8.1.7 the Supplier Materials do not infringe the IPR of any third party; and
8.1.8 the Services shall be performed in accordance with Good Industry Practice.
8.2 The Supplier will, as far as is possible, pass on to FEXCO the benefit of any warranties or guarantees received by the Supplier from any other person or entity relating to the Goods and/or Services.
9.1 The Contract shall start on the Commencement Date and end on the Expiry Date.
9.2 In any Contract where there is no Supply Agreement or the Supply Agreement makes no reference to expiry, the Contract shall terminate in accordance with Condition 10 (Contract Termination).
10. Contract Termination
10.1 Either party may end the Contract immediately by giving written notice to the other party if the other party commits a material breach of the Contract and, where the breach is capable of being remedied, fails to remedy the breach within 30 days of that written notice.
10.2 Either party may end the Contract immediately by giving written notice to the other if the other ceases (or threatens to cease) to trade, goes into liquidation or bankruptcy (or has a petition for its winding up or bankruptcy presented or passes a company resolution for its winding up), goes into administration (or is subject to an administration application), has a receiver appointed over its assets or proposes an arrangement or compromise with people to whom it owes money.
10.3 Without prejudice to any other rights, FEXCO may terminate the Contract at any time by giving not less than 30 days’ prior written notice to the Supplier.
10.4 The election by either party to terminate does not affect or limit that party’s right to pursue any other legal or equitable remedies available to them.
11. Consequences of Contract Termination
11.1 Following termination of the Contract:
11.1.1 each party shall keep any accrued rights, obligations or liabilities to the extent arising prior to the end of the Contract;
11.1.2 those terms of the Contract which are expressed, or by implication are intended to continue in force on or following the end of the Contract shall do so, including without limit those under Conditions 4, 7, 8, 11.2, 12, 20 and 21.
11.2 On the date the Contract is ended, each party shall promptly return any Confidential Information, data or property of the other party to that other party.
12.1 Without prejudice to any other right or remedy available to FEXCO, if any Goods and/or Services are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of the Contract, FEXCO will be entitled (but not obliged) at its discretion to avail itself of any of the following remedies whether or not any part of the Goods and/or Services have been accepted by FEXCO:
12.1.1 to reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis of a full refund for the Goods so returned being paid forthwith by the Supplier;
12.1.2 at FEXCO’s option to give the Supplier the opportunity, at the Supplier’s expense, either to fix the Goods or to re-perform the Services (if appropriate) or supply replacement goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
12.1.3 to refuse to accept any further deliveries or performance of the Services or the Goods, but without any liability to FEXCO;
12.1.4 where Goods do not comply with Condition 3.1, the Supplier will pay all costs associated with fixing or replacing the Goods or re-performing the Services including the costs of any recall of Goods required and any costs FEXCO is contractually obliged to pay to its customers as a result of the circumstances arising in this Condition 12.1.
12.2 Neither FEXCO nor the Supplier excludes or limits its liability to the other:
12.2.1 for personal injury or death resulting from its negligence;
12.2.2 for breach of a third party’s intellectual property rights and for breach of Condition 7 (Intellectual Property);
12.2.3 for breach of Condition 4 (Confidentiality);
12.2.4 for breach of Condition 14 (Data Protection);
12.2.5 for fraud or fraudulent misrepresentation; or
12.2.6 for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
12.3 Subject to Condition 12.2, FEXCO’s maximum aggregate liability to the Supplier whether in tort, contract or howsoever arising, shall be limited to:
12.3.1 the price payable by FEXCO pursuant to the Supply Agreement; or
12.3.2 where the Contract does not include a Supply Agreement, the price payable pursuant to the P.O. to which the relevant contractual default relates;
12.3.3 in each case in the 12 month period preceding the event giving rise to the claim.
12.4 If Condition 12.1 applies, the Supplier will promptly provide an explanation to FEXCO in writing describing the reasons why the Goods and/or Services are not supplied in accordance with any of the terms of the Contract.
12.5 The Supplier shall indemnify FEXCO and shall keep FEXCO indemnified at all times hereafter in relation to:
12.5.1 any claims, losses, liabilities, damages, expenses and costs (including reasonable legal expense) which result from personal injuries or property damage of FEXCO its employees, directors, contractors or agents, arising out of any act, omission (whether or not negligent) of the Supplier or any of its employees, agents or representatives; or
12.5.2 any and all claims made by or on behalf of or in respect of any persons employed or engaged by the Supplier (including for the avoidance of doubt all persons employed or engaged by any sub-contractor of the Supplier appointed in accordance with Condition 18 (Subcontracting and Assignment) in relation to the provision of any or all of the Goods and/or Services hereunder, the (‘Claimant’), and whether arising during the Contract, or on or after the termination of the Contract, and including in particular (but not limited to) any claim by or on behalf of any such Claimant pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.
13.1 The Supplier shall (at its own cost) have in place insurance cover with reputable insurers of sufficient value and of the correct types to cover the Supplier’s activities carried out under the Contract, including but not limited to the following:
13.1.1 Employers liability insurance – €13,000,000;
13.1.2 Public liability insurance – €6,500,000;
13.1.3 Products liability insurance – €3,000,000 (Goods Contracts only); and
13.1.4 Professional indemnity insurance – €3,000,000 (Service Contracts only).
13.2 The Supplier shall promptly on request supply written evidence of such insurances to FEXCO.
14. Data Protection
14.1 The parties hereby undertake to comply with all relevant provisions of the Data Protection Acts 1988 to 2003 and any statutory modification or re- enactment thereof.
15. Work on Site
15.1 Where the Supplier undertakes the installation of equipment or work on any of FEXCO’s sites as part of the provision of the Goods and/or Services, the Supplier shall comply with any instructions issued to it and comply with all Policies (relevant to the site) and procedures notified to it from time to time.
16.1 If there is a Supply Agreement, once each year during the term, as specified in Condition 9 (Term), or in the absence of a Supply Agreement, at FEXCO’s option:
16.1.1 the Supplier will permit FEXCO and its employees or agents access to any site connected with the supply of the Goods and/or Services upon reasonable prior written notice during normal business hours for the purpose of inspecting, auditing, verifying, monitoring or testing the manner and performance of the Supplier’s obligations under the Contract provided that in the exercise of its right under this Condition 16.1, FEXCO will not cause undue disruption to the business of the Supplier; or
16.1.2 FEXCO will be entitled upon reasonable prior written notice during normal business hours to inspect or cause to be inspected such records, documents and other apparently relevant information (in whatever tangible or intangible form) as FEXCO will reasonably require, and will be entitled to be supplied, without charge with any copies or extracts therefrom.
17.1 Any notices must be in writing and may be delivered only by hand, special delivery post or fax, addressed to the recipient at its registered office, or to any other address or fax number as notified in writing to the sender by the other party. Notices shall be deemed to be served on the Business Day following receipt by the recipient of the notice.
18. Subcontracting and Assignment
18.1 The Supplier may not subcontract, assign or transfer any of its rights or obligations under the Contract without the prior written consent of FEXCO. Where the Supplier is permitted to subcontract by FEXCO, the Supplier shall remain responsible and liable for the acts and omissions of its subcontractors.
18.2 FEXCO may subcontract, assign or transfer its rights or obligations under the Contract at any time.
19. Force Majeure
19.1 A party is not liable for failure to perform the party’s obligations if such failure is as a result of an ‘Act of God’ (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or telephone service. No party is entitled to terminate the Contract under Condition 10 (Contract Termination) in such circumstances.
19.2 If a party asserts Force Majeure as an excuse for failure to perform the party’s obligation, then the non-performing party must prove that the party took reasonable steps to minimize delay or damages caused by foreseeable events, that the party substantially fulfilled all non-excused obligations, and that the other party was timely notified of the likelihood or actual occurrence of an event described in Condition 19 (Force Majeure).
20. Governing Law and Jurisdiction
20.1 The Contract shall be construed as being subject in all respect to the laws of Ireland and the parties agree to submit to the exclusive jurisdiction of the Irish Courts in the event of a dispute.
21.1 If any part of the Contract is found by any court or authority to be illegal, invalid or unenforceable then that part will be removed from the Contract to the extent required, but the other parts of the Contract will remain in full force and effect.
21.2 The obligations owed to FEXCO shall be owed to any member of FEXCO Group of companies to whom the Goods and/or Services are actually provided.
21.3 If, at any time, either party fails to exercise any right or remedy in connection with any part of the Contract, this will not operate as a waiver of that right or remedy.
21.4 The Contract contains all the terms and conditions, which FEXCO and the Supplier have agreed, in relation to the Goods and/or Services and supersedes any previous written or oral agreements or representations between the parties relating to the provision of the Goods and/or Services. The Supplier acknowledges that it has not relied upon any warranty, representation, statement or understanding made by FEXCO which is not set out in the Contract.
21.5 Unless otherwise agreed in writing with FEXCO, the Contract shall not imply any commitment by FEXCO to Contract with the Supplier exclusively.
21.6 In performing its obligations under the Contract, the Supplier shall ensure that neither its officers nor employees shall offer, promise or give a financial or other advantage to any FEXCO employee, representative, agent or other entity acting on the behalf of FEXCO with the intention of inducing that person to improperly perform any activity connected with the Supplier’s or FEXCO’s business, or to reward that person for the improper performance of any activity connected with the Supplier’s or FEXCO’s business.
21.7 All agreements on the part of either of the parties, which comprise more than one person or entity, shall be joint and several and the neuter singular gender throughout the Contract shall include all genders and the plural, and the successors in title to the parties.
21.8 Suppliers may not publish any information relating to a Contract between the Supplier and FEXCO without prior written approval from FEXCO. Unauthorised use of any of the trademarks of FEXCO, including but not limited to the FEXCO logo, is strictly prohibited and may be liable to prosecution.