Finol Oils Unlimited Company Trading as Finol Oils
Standard Terms & Conditions
APPLICATION OF CONDITIONS
Except as otherwise agreed in writing, these Standard Terms and Conditions exist as a contract between Seller and Buyer and override any inconsistent terms and conditions in any document or other communication used by Buyer in relation to this contract or implied by trade, custom or course of dealing.
If Buyer and Seller agree in writing, this contract may be extended for annual or other agreed periods after the expiry of the specified contract period.
ORDERS & DELIVERY
Seller will use all reasonable efforts to meet Buyer’s requested delivery schedule specified in Buyer’s order. If a delay is caused by something beyond Seller’s control, the delivery is extended accordingly. Time is not of the essence of this Article and Seller is not liable for any loss or damage to Buyer resulting from any delay in delivery. Nothing in this contract entitles Buyer to any priority of supply in relation to any product sold hereunder as against Seller’s other customers. Delivery of product is subject to and will be made in accordance with, Seller’s minimum and maximum quantity policy in force from time to time, and unless otherwise agreed in writing will be at the cost of the Buyer.
The title of the goods will not pass to the buyer until paid for in full
If the buyer shall receive from the seller a notice to the effect that the buyer has failed on the due date for payment to pay the full purchase price for the products or any other amount due to the company or if any receiver, examiner or manager of the buyer is appointed or if any action is taken for the dissolution, examinership or liquidation of the buyer (save for the purpose of reconstruction or amalgamation) or if the buyer shall cease to trade or appears unable to pay a debt or appears to have no reasonable prospect of being able to pay a debt so as to entitle a creditor to bring a creditors application under the Insolvency Act 1986 or any subsequent amendments thereof or shall be attached or distrained upon then the buyer will be deemed to have repudiated the the contract for the purchase of any of the products in respect of which the property has not passed to the buyer and shall fortwith yield the same up to Finol and for the purpose of possessing the same, Finol its servants and agent may enter upon the land or buildings in or upon which the Products are situated.
RISK & INSURANCE
Risk (which includes responsibility for loss of or damage to) in any products sold under this contract passes to Buyer when those products are delivered or transferred to Buyer’s carrier. This applies even if Buyer postpones collection or refuses to collect the products. Buyer must keep the products insured against all risks usually insured against for products of that kind from the time the risk passes to Buyer until the property in those products also passes to Buyer
INCREASED COSTS & GOVERNMENT ACTION
Seller is entitled to increase the price (or reduce any rebates given to Buyer) of products to the extent of the increase, prior to the date payment is due, in any of the following:
- freight, marine all risks and other insurances;
- shipping costs and expenses;
- foreign exchange, customs and primage duties;
- costs of sub-contracted items of work and goods; and
- sales tax, GST and/or any other duty, charge, levy, impost or tax imposed in relation to the
Notwithstanding anything in this contract, in the event that any government, government agency or authority takes any action whatsoever which has, or will have, the effect, directly or indirectly of reducing the price for any product or increasing the operating or production costs for any product then Seller may reduce any rebate given to Buyer or increase the price for the products by the amount of the reduction in price or increase in costs (as the case may be).
OTHER PRICE ADJUSTMENTS
Seller may, in its absolute discretion, vary the price of the products for any other reason by giving Buyer notice of the variation. The new price for products is effective for any product supplied after Seller has given Buyer notice of the new price. If the Buyer objects to the new price it may by written notice to the Seller cancel any outstanding or unfulfilled orders without charge. If Seller is prevented from continuing or making any changes to the price by act of government authority, Seller may terminate this contract by giving Buyer thirty (30) days prior written the notice.
Unless otherwise expressly stated in this contract, the price for any products sold by Seller to Buyer does not include any tax, excise, levy, duty or other governmental charge imposed upon or value added to the production, sale, storage, use or transportation of any of those products, all of which must be paid (or reimbursed to the Seller) by Buyer. Buyer shall provide Seller, upon request, with properly completed exemption certificates for any tax from which Buyer is entitled to (and claims) an exemption.
Any credit terms extended by Seller to Buyer may be immediately withdrawn or amended at Seller’s sole discretion upon any failure by Buyer to pay Seller under this contract or any other agreement between Buyer and Seller or otherwise.
Seller may at any time during the term of this contract, if it in good faith believes that the prospect of payment or performance by Buyer is impaired, require reasonable additional security to be provided for or on behalf of Buyer. If Seller does require additional security, Buyer must immediately procure that security to Seller in the manner and form required by Seller.
Seller may at any time during the term of this contract request financial information to facilitate Seller’s review of the credit provided to Buyer and the adequacy of any security. If requested by Seller, Buyer must immediately provide to Seller:
- a statement of the financial position of Buyer prepared as at the balance date of the latest financial period;
- a statement of financial performance and cash flow statement for the latest financial period; and
- a projected cash flow statement for the next financial
If the solvency or financial responsibility of Buyer becomes impaired or unsatisfactory to Seller, advance cash payment or satisfactory security must be given by Buyer upon demand by Seller, and shipments of product may be withheld by Seller until such payment or security is received. If Buyer fails to pay any amounts payable on time Seller has the right, in addition to any other rights it may have at law, to do all or any of the following (1) impose interest on the amount not paid on time until the outstanding amount is paid.
Seller may at any time and without notice to Buyer, apply, combine, consolidate or merge;
- any amount standing to the credit of Buyer held in the accounts of Seller; or any other amounts that Seller is required to pay to Buyer under this contract or on any other account whatsoever;
- by way of set-off, lien or counterclaim in or towards satisfaction of any money at any time due and payable, or which may become due and payable, by the Buyer to Seller under this contract or under any other agreement
THE PRODUCTS SOLD HEREUNDER SHALL BE OF MERCHANTABLE QUALITY AND SHALL CONFORM TO SELLER’S CURRENT STANDARD SPECIFICATIONS OR SUCH OTHER SPECIFICATIONS AS SHALL HAVE BEEN MADE EXPRESSLY A PART OF THIS CONTRACT. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, OF FITNESS FOR PARTICULAR USE OR OTHERWISE, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS. Buyer acknowledges that in
entering into this contract, it does not do so on the basis of, and does not rely upon, any representation, warranty or other provision (except as expressly provided in this contract) given by Seller and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Buyer must (a) not give any person any guarantee, warranty, inducement or benefit nor make any representations on behalf of Seller, and (b) not make any claim in respect of any product, including as to the quality, performance or manufacture of such product that is inconsistent with legal or regulatory requirements or that is incorrect or misleading in any way, and (c) co- operate fully with Seller’s employees and other contractors and provide all assistance reasonably required by Seller from time to time, and (d) comply with all reasonable directions from time to time given by Seller.
LIMITATION OF LIABILITY
The liability of Seller for defective or nonconforming products or for breach of any condition or warranty implied by law is in the case of products which are not of a kind ordinarily acquired for personal, domestic or household use or consumption limited to the replacement of those products (or supply of equivalent products) by Seller without additional charges, or in lieu thereof, at Seller’s option, the payment by Seller of the cost of replacing the products (or of acquiring equivalent products) upon return of the products at Seller’s expense. Buyer must deliver defective product to Seller’s premises or other premises nominated by Seller within 7 days after the date when the defect is discovered.. If there is a claim against Buyer by any third party in relation to any of the warranties made in respect of the products, Buyer must
(a) notify Seller within fourteen (14) days of receipt of a claim from a third party specifying in reasonable detail particulars of the claim and breach of warranty, and (b) give Seller the opportunity to assist it in the defence and settlement of any such claim. Buyer must at all times indemnify and hold harmless Seller and its officers, employees and agents (those indemnified) from and against any loss (including legal costs and expenses) or liability incurred or suffered by any of those indemnified and all actions, proceedings and claims or demands made against those indemnified to the extent that they were caused directly or indirectly by a breach by Buyer of its obligations under this contract or any wilful, unlawful or negligent act or omission of Buyer or its employees or agents.
SAFETY AND HEALTH INDEMNITY
Seller shall furnish to Buyer Material Safety Data Sheets, including warnings and safety and health information concerning the products and/or the containers for such products sold hereunder. Buyer must comply with Seller’s requirements in relation to storage and handling of the product, and maintain appropriate equipment and facilities to enable it to comply with its obligations at all times. Buyer agrees to communicate such warnings, information and requirements to all persons Buyer can reasonably foresee may be exposed to or may handle such materials or containers, including but not limited to Buyer’s employees, agents, contractors or customers. If Buyer fails to communicate such warnings, information and requirements, Buyer agrees to defend and indemnify Seller against any and all liability arising out of or in any way connected with such failure, provided however, that if Seller has contributed to such liability, Buyer’s indemnity to Seller shall be reduced by the proportion in which Seller contributed. Seller will provide Buyer with reasonable notice and opportunity to defend in the event any claim or demand is made on Seller as to which such indemnity relates. Seller and Seller’s agents may enter and inspect any premises controlled by Buyer to audit Buyer’s compliance with this Article.
SPECIFICATION CHANGES; PRODUCT DISCONTINUANCE
Seller may at its discretion (a) change or alter the quality or specifications of any of the products hereunder, or (b) discontinue the manufacture of any such products, or (c) discontinue the manufacture of any products at a particular manufacturing or blending facility. If specifications for any products covered hereunder are specifically set forth herein, Seller shall give Buyer thirty (30) days written notice of any proposed change. If such proposed change would, in the opinion of Buyer, materially affect the performance of such products, Buyer may terminate this contract as to such products. Seller shall give Buyer sixty (60) days written notice of discontinuance of the manufacture of any product(s) covered hereunder and the contract shall terminate as to such product(s) at the end of such period. If Seller elects at its option to discontinue the manufacturing of any products at a particular location or blending facility, and Seller is unable to provide comparable product to Buyer from another facility, then Seller may terminate this contract as to such products by giving Buyer sixty (60) days written notice of such termination.
FAILURE IN PERFORMANCE
- No liability shall result to either Seller or Buyer from delay in performance or non-performance in whole or in part caused by circumstances reasonably beyond the control of the party affected, including, but not limited to, acts of God, fire, flood, war, explosion, breakdown or labor trouble; embargoes or other import or export restrictions; shortage or inability to obtain energy, equipment, transportation, product deliverable hereunder, crude petroleum or other feedstock from which said product is derived; or good faith compliance with any regulation, direction or request (whether valid or invalid) made by any governmental authority or person purporting to act
- Regardless of the occurrence or non-occurrence of any of the causes set forth in paragraph (a) above, if for any reason, supplies of any product deliverable hereunder or of crude petroleum or other feedstock from which such product is derived from any of Seller’s existing sources are curtailed or cutoff or are inadequate to meet Seller’s own requirements and its obligations to its customers, Seller’s obligation hereunder during such period of curtailment, cessation or inadequacy shall at its option be reduced to the extent necessary in Seller’s sole judgment to allocate among Seller’s own requirements and its customers (whether under contract or not), such product as received and as may be available in the ordinary and usual course of Seller’s business from any such existing sources of supply at the location(s) from which deliveries hereunder are normally
- Seller shall not be obligated to purchase or otherwise obtain other supplies of such product, crude petroleum or other feedstock from which such product is derived to make up inadequate supplies or to replace the supplies so curtailed or cut off. Seller shall not be obligated to make up deliveries omitted or curtailed hereunder and any such deficiencies in deliveries shall be canceled from the contract with no liability to either party
COMPLIANCE WITH LAWS AND REGULATIONS
Buyer must, at Buyer’s expense, apply for and maintain any and all licences, permits and approvals and governmental authorisations required in order to enable Buyer to comply with its obligations under this contract and Buyer agrees to indemnify and hold Seller harmless against all losses, claims, causes of action, penalties and liability arising out of Buyer’s failure to comply with all applicable Federal, State and Local laws, ordinances, regulations, rules and orders.
INTELLECTUAL PROPERTY RIGHTS
Buyer acknowledges and agrees that nothing contained or implied in this contract or the performance of the terms of this contract gives Buyer ownership of or gives rise to any proprietary interest of Buyer in Seller’s name, trade marks, trade names or any other intellectual property rights of Seller and its related bodies corporate.
The terms of this contract and its subject matter (Confidential Information) are confidential and may not be disclosed by a party to any person during or after the term of the contract except (a) to a party’s employees, legal advisers and auditors (provided that party ensures that the relevant person is aware that the Confidential Information is confidential and does not further disclose the Confidential Information except in accordance with this clause), or (b) with the consent of the other party, or (c) if required by law or the rules of any applicable securities exchange, or (d) if the Confidential Information is generally and publicly available. Each party must not use the Confidential Information for any purpose other than in connection with the performance of this contract or as permitted by this Article.
Upon the termination of this contract for any reason whatsoever: (a) Seller’s obligation to supply the products shall cease, and (b) outstanding unpaid invoices rendered by Seller in respect of the products shall become immediately payable by Buyer and invoices in respect of products delivered prior to termination but for which an invoice has not been remitted shall be payable immediately upon remittance of the invoice, and (c) Buyer must deliver up to Seller or otherwise dispose of as Seller directs any other property of Seller which Buyer may have in its possession or control.
If any equipment associated with the supply of lubricants is provided by FINOL to the Buyer during the term of this Agreement, unless the parties agree otherwise in writing, ownership of and responsibility for that equipment transfers to the Buyer at the time and date of delivery of the equipment to the Buyer’s premises
These conditions and any related agreement shall be governed by Irish Law and the Irish Courts shall have exclusive jurisdiction to deal with disputes arising under it.