Terms & Conditions - Philip White Tyres Ireland Commercial, Agricultural and Retail

Definitions

“ Seller” means PHILIP WHITE TYRES IRELAND

“Buyer” means the person who accepts the quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller

“Contract” means the contract for the purchase and sale of the Goods

“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller

“Goods” means the products sold by the Seller to the Buyer including but not limited to, tyres and alloys [ANY OTHER?].

“Manufacturer” means the person/company/business which manufactures the Goods

(“the headings in these conditions are for convenience only and shall not effect their interpretation”)

Basis of sale

The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer.
No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
Any typographical clerical or other error or omission in any sales literature, quotation, prices, acceptance of offer, invoice or other documentation or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller's authorised representative.
The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller)
The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profits) costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation.

Price and payment

The price of the Goods shall be the Seller's quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller's published price list current at the date of acceptance of the order. All prices quoted are exclusive of value added tax which shall be added to the invoice/statement and paid by the Buyer.
The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increases in the cost of labour, materials or other costs of manufacture) any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agreed in writing between the Buyer and the Seller all prices are given by the Seller on an ex-warehouse basis and where the Seller agrees to deliver the Goods otherwise than at the Seller's premises the Buyer shall be liable to pay for the Goods at the price agreed with the Seller to include such delivery.
The price is exclusive of any applicable valued added tax which the Buyer shall be additionally liable to pay to the Seller
Unless otherwise agreed with the Seller and confirmed in writing the Buyer shall pay the price of the Goods within 30 days of the date of the Seller's invoice and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and that property in the Goods is not passed to the Buyer.
Time of payment of the price shall be of essence of the Contract. Receipts for payment will be issued only upon request.
If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:
cancel the contract or suspend any further deliveries to the Buyer
appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
charge the Buyer interest (both before and after any judgement on the amount unpaid at the rate of 8% per annum above the Bank of England base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). The Buyer will reimburse the Seller for all costs and expenses (including legal costs on an indemnity basis) incurred in the collection of any overdue amount
any unpaid cheques or returned direct debit payments will incur a fee of £20 or €25.

Resale of Goods

The Goods are supplied for resale subject to the following conditions:

the Goods must be sold or resold only in the condition (without any alterations or repairs) in which the Goods were supplied by the Seller.
No trademark or other branding other than the trademarks carried by the Goods at the time of delivery will be marked on or applied in relation to the Goods
The Buyers shall take all such steps reasonably necessary to ensure that the Goods are stored, displayed and offered for sale in accordance with any instructions provided by the Seller from time to time
in the event of any recall of any Goods supplied the Buyer will co-operate with the Seller in order to procure the recall of such Goods
No right or licence is granted under these conditions or any contract with the Buyer in relation to any trademark, copyright, registered design or any other intellectual property right except the right to use or resell the Goods in accordance with clause .1 above. No warranty is given as to whether the use or resale of the Goods will infringe the rights of third parties.

Delivery

Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. The cost of delivery shall be in addition to the price.
Any time or dates quoted for the delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused and the Seller's conformity with such time and date is not, and shall not in any event or circumstance be or become of the essence of the Contract. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
store the Goods until actual delivery and charge the Buyer for the reasonable cost (including insurance) of storage or
sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract
The Buyer can only return the Goods within 7 days of the date of invoice for the goods. The buyer is to contact our sales office and request a “returns delivery request” form to be completed by the Seller. The Seller organises collection of the Goods.
If the Buyer returns the Goods to the Seller and the sale has been conducted in accordance with the terms herewith, the Seller will be entitled to charge a carriage charge to and from the Buyers premises. The Carriage charge will be the market value at the time of return. In addition to this a 5% handling charge will apply.

Risk and property

Risk of damage to or loss of the Goods shall pass to the Buyer:
in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, or the time when the Seller has tendered delivery of the Good s
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business. Where the Buyer has sold the Goods pursuant to this condition the Buyer shall forthwith account to the Seller for the proceeds of sale, including any insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties.
Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

Warranties and liability

Subject to the conditions set out below the Seller warrants that the Goods will correspond with the Manufacturer's specification and terms of warranty. The Seller shall have no liability with regard to any claim in respect of the manufacture, quality or design of the Goods. The Buyer shall be entitled to rely on the Manufacturer's terms of warranty which the Seller shall assign to the Buyer on receipt of payment for the Goods. All claims in respect of the manufacture of or any defect in the Goods will be passed to the Manufacturer by the Seller.
The Seller agrees to pass on the results of the tyre examination conducted by the Manufacturer and any subsequent credits due to the Buyer. If the Buyer disagrees with the Manufacturer's tyre examination results the Seller reserves the right to send the tyre to an independent/different tyre manufacturer for a further inspection report. If this report agrees with the first report the Buyer shall reimburse the Seller for the costs involved in the second examination (including carriage and administration) if the second report is of a different conclusion than the first the Seller agrees to table negotiations between the Buyer and the Manufacturer to conclude matter.

The above manufacturer warranty is given by the manufacturer and passed on by the Seller with the product. This is subject to the following conditions:

the Seller shall be under no liability in respect of any defect in the Goods arising from any specifications supplied by the Buyer
the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval including without limitation:-
if any modifications have been made to the tyre
if a specified tyre inflation pressure, tyre loading and maximum speed limit was not observed
if an inappropriate or damaged wheel disk was used
if inappropriate air tubes or flaps were used
if the tyre was damaged during assembly
if the tyre was used for any reason contradictory to the reason for which it was designed
in the event of uneven wear caused by ill technical conditions of the vehicle
if mechanical damage is inflicted upon the tyre during operation, whatever the reason
if dual-assembly tyres contact each other during operation
on retreaded or otherwise repaired tyres
if the tyres were filled with material(s) other than air, without manufacturer's consent
if the tyres were damaged by any oil-based substance or that of other chemicals (fuels, propellants, greases, acids, lyes, solvents etc.) fire or by force majeure
the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price of the Goods has not been paid by the due date for payment
the above warranty does not extend to parts, materials or equipment not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller
Subject as expressly provided in these conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or the failure to correspond with the specifications shall (whether or not delivery is refused by the Buyer) be notified to the Seller within two working days from the date of delivery (or where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these conditions the Seller shall be entitled to return the goods to the Manufacturer but the Seller shall have no further liability to the Buyer
Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profits or otherwise) costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, it's employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods except as expressly provided in these conditions.

The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Seller's reasonable control:

act of god, explosion, flood, tempest, fire or accident;
war or threat of war, sabotage, insurrections, civil disturbance or requisition;
acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
import or export regulations or embargoes;
strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or other third party);
difficulties in obtaining raw materials, labour, fuel, parts or machinery;
power failure or breakdown in machinery

Insolvency of Buyer

This clause applies if:

the Buyer makes any voluntary arrangement with it's creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an Administration Order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
an encumbrancer takes possession, or a Receiver is appointed, of any of the property or assets of the Buyer; or
the Buyer ceases or threatens to cease, to carry on the business; or
the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly
If this clause applies then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary

General

Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be effected.
The Contract shall be governed by the Laws of Northern Ireland and the Buyer agrees to submit to the non-exclusive jurisdiction of the Northern Irish Courts.

TERMS AND CONDITIONS OF SALE