Terms & Conditions

TERMS AND CONDITIONS OF FEGAN'S CASH & CARRY LIMITED

TRADING AS FEGAN’S FOODSERVICE

1.    PRELIMINARY

1.1. Definitions

In these terms and conditions unless the context otherwise requires:­

- “Fegans” means Fegan's Cash & Carry Limited trading asFegan’s Foodservice

“Delivered Business Centre Sales ”why not “sales?” means sales of products by FEGANS to the Buyer where the Products are delivered from FEGANS delivered business centres or collected by the Buyer from such centres;

- “Invoice Value” means the sums invoice d by FEGANS to the Buyer in respect of any Products;

- “Products” means such products from the range of products sold by FEGANS or Approved Suppliers as may from time to time be determined by FEGANS to be subject to these terms and conditions.

 “Buyer” means the party that purchases Products from Fegans whether they are delivered from Fegans delivered business centres or collected by the Buyer from such centres.

“Approved Supplier” means such suppliers as Fegans may deem (Define what you mean by this”) from time to time

1.2. Interpretation

1.2.1 Headings are inserted for convenience only and do not affect the construction of these terms and conditions.

1.2.2 Unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing the masculine include the feminine, and words importing persons include corporations.

1.2.3 Reference in these terms and conditions to writing or similar expressions includes where the context so admits transmissions by telecopier or comparable means of communication.

2.    GENERAL

2.1. The provisions of these terms and conditions shall apply to all sales of Products by FEGANS to the Buyer including Delivered Business Centre Sales “Sales”, of Products by FEGANS trading as “FEGAN'S CASH & CARRY LIMITED, Cash and Carry sales and no variation or  purported variation (including in particular any terms and conditions on the Buyers contract or order form), whether before or after the making of the contract, shall have effect unless expressly agreed to in writing by FEGANS.

2.Where did you get this – that’s more for products that have spare parts/ hold warranties like cars

2.3. Words and expressions defined in the Sale of Goods Acts, 1893 and 1980 shall, when used in these terms and conditions, save where the context otherwise requires, bear the same meanings as therein.

3.    TERMS OF PAYMENT

3.1. Payment shall be made by the Buyer to FEGANS within the period stipulated in FEGANS’ statement of account or otherwise as communicated by FEGANS by transfer to such bank account as FEGANS may from time to time notify in writing to the Buyer, by EFT or by Direct Debit unless otherwise agreed.

FEGANS reserve the right to apply interest and compensation in accordance with the European Communities (Late Payment in Commercial Transaction Regulations) 2002. The interest rate applied will the ECB rate plus 7 percentage points as set out in the regulations. Such interest and compensation shall be payable on demand and may be charged and added to the balance of overdue payments, and thereby compounded, from time to time as FEGANS may determine.

4.    CREDIT LIMITS & CREDIT TERMS

4.1. The supply of Products by FEGANS to the Buyer is subject to the imposition by FEGANS of credit limits in terms of amount (“the financial credit limit”) and number of days (“the period credit limit”) (together “the credit limits”). If either the financial credit limit or period credit limit is or would be exceeded, the Buyer will not be entitled to have supplied to him any Products until the outstanding amounts owed by the Buyer to FEGANS in respect of Products supplied to the Buyer are reduced to an amount below the financial credit limit and the Buyer at the relevant time owes no amounts to FEGANS outside the period credit limit. The provisions set out in this clause 7.1 (cross reference that term) shall apply even if the Buyer’s order has been accepted by FEGANS or by an Approved Supplier on behalf of FEGANS. Without prejudice to the generality of clause 17.5, no indulgence or forbearance by FEGANS in the application of the credit limits shall affect the Buyer’s obligations hereunder and the application of the credit limits.

4.2. FEGANS may in its sole discretion decide to supply Products to the Buyer despite the existence of a credit limit which is or would be exceeded.

4.3. Bank guarantees may be required by FEGANS for all potential contracts between the Buyer and FEGANS.

4.4 FEGANS shall not incur any liability for any loss, whether consequential, special or otherwise including but not limited to loss of profit or reputation, from the bona fide miscalculation or misapplication by FEGANS or an Approved Supplier of the credit limits referred to in Clause 7.1 Is that the right term, cross reference

5     TRANSFER OF OWNERSHIP

5.1. The property in the Products supplied to the Buyer shall remain in FEGANS until FEGANS have received payment in full for all sums due and owing to FEGANS on any account.

5.2. So long as the property in the Products shall remain the ownership of FEGANS, the Buyer shall hold the Products as bailee for FEGANS and store the Products so as to clearly show them to be the property of FEGANS, and FEGANS shall have the right, without prejudice to the obligations of the Buyer to purchase the Products, to retake possession of the Products in accordance with clause 8.3.

5.3. So long as the property in the Products shall remain with FEGANS, the Buyer hereby grants a licence to FEGANS, its employees, representatives or agents to enter upon any premises which FEGANS reasonably believes to be owned, occupied or controlled by the Buyer for the purpose of repossessing the Products for which FEGANS has not been paid or whose title has been retained under clause 8.1 hereof and the Buyer shall not raise any objection thereto. The Buyer shall indemnify and keep indemnified FEGANS for any costs, expenses, amounts, damages or liabilities suffered by FEGANS as a result of a breach by FEGANS of the rights of third parties as a result of the application of this clause.

5.4. Nothing in this clause shall confer any right upon the Buyer to return the Products. FEGANS may maintain an action for the price notwithstanding that property in the Products shall not have vested in the Buyer.

6     DELIVERY

6.1. This clause 6 shall not regulate the terms of delivery of Products supplied by FEGANS to the Buyer in circumstances where the Products are not delivered by or on behalf of FEGANS. 

6.2. Delivery of any Products to the Buyer may be carried out by FEGANS or any other person nominated by FEGANS.

6.3. Any times quoted for delivery are estimates only and FEGANS shall not be liable for failure to deliver within the time quoted.

6.4. If all or some of the Products are not received by the Buyer on the date for delivery, the Buyer shall forthwith inform FEGANS and in any case no later than 24 hours from the agreed delivery date. The same procedure applies to damaged goods. Such events should also be notified in writing.

6.5. FEGANS shall be entitled to make partial deliveries or deliveries by instalments and the terms and conditions herein contained shall apply to each partial delivery.

6.6. The Buyer shall be deemed to have accepted the goods delivered by the signing in writing or electronically of the delivery docket or other equivalent document and such delivery docket or equivalent document duly signed by or on behalf of the Buyer shall be conclusive as to the type and quantity of goods delivered.

6.7. Deviations in quantity of the Products from that stated in the order placed by the Buyer shall not give the Buyer any right to reject the Products or to claim damages and the Buyer shall be obliged to accept and pay at the relevant price for the quantity of the Products delivered.

6.8. Unless otherwise agreed in writing the delivery of Products which are reasonable substitutes for the goods ordered by the Buyer and which are accepted in accordance with clause 9.6 shall not give the Buyer any right to reject same or claim damages and the Buyer shall be obliged to pay at the relevant price for the Products delivered.

7     RISK OF LOSS OR DAMAGE

7.1. Notwithstanding that the property in the Products may not have passed to the Buyer, the Buyer shall carry all risk of loss of and damage to the Products from the time when the Products are delivered by or on behalf of FEGANS or an Approved Supplier to the Buyer or if the Buyer or its nominee collects the goods the Buyer shall carry all risk of loss and damage to the Products from the time of collection, either of which events shall constitute delivery to the Buyer, and Section 32(2) and (3) of the Sale of Goods Act, 1893 shall not apply.

7.2. From when the risk of loss of and damage to the Products commences to be carried by the Buyer until FEGANS is paid in full for the Products, the Buyer shall:

7.2.1. Indemnify and keep indemnified FEGANS against all loss of and damage to the Products and against any reduction in the re-sale value thereof below the price to be paid therefore by the Buyer;

7.2.2. Insure and keep insured the Products in an amount at least equal to the price to be paid therefore by the Buyer;

7.2.3. Hold upon trust for FEGANS absolutely all proceeds of such insurance.

8     LIABILITY AND REMEDIES FOR DEFECTS

8.1. To the extent permitted by law, all warranties including collateral warranties, conditions and representations, express or implied, statutory or otherwise, in relation to the Products are hereby excluded and FEGANS shall not be liable in contract, tort or otherwise for any loss, damage, expense or injury of any kind whatsoever, consequential including but not limited to loss of profits or reputation or otherwise, arising out of or in connection with the Products sold or any defect in them or from any other cause, whether or not any such matter amounts to a fundamental breach of a fundamental term of the contract.

8.2. If the provisions of clause 11.1 are in any particular case not applicable and by reason of any defect in the Products there shall be a breach of any implied condition or warranty applicable thereto, FEGANS or the Approved Supplier on behalf of FEGANS. 

8.2.1. The relevant Products shall be returned to FEGANS or unless FEGANS specifies otherwise, to the Approved Supplier at the cost of the Buyer.

8.2.2. Examination of such Products by FEGANS or unless FEGANS specifies otherwise, by the Approved Supplier shall disclose to FEGANS or the Approved Supplier's satisfaction that the defect existed at the time of delivery or that a breach of an implied condition or warranty shall have occurred as aforesaid, and in particular that the Products shall not have been affected by misuse, neglect, accident, improper storage, installation or handling or by repair or alteration not effected by FEGANS or the Approved Supplier.

8.3. FEGANS’s 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 Products shall in no case exceed the price paid by the Buyer to FEGANS for the Products which give rise to the claim, plus expenses of customs, taxes, freight and insurance. In no event shall FEGANS be liable for any loss of profits, or special or consequential damages suffered by the Buyer, including loss of profit or reputation or interest charges. Nothing contained in this paragraph shall by implication create any liability or obligation on the part of FEGANS, or effect or diminish any disclaimer or liability elsewhere contained herein.

If the exclusions contained in this clause are held for any reason not to be applicable and FEGANS is found liable in any way in respect of Products supplied to the Buyer, FEGANS's liability under this provision shall be limited to a period of one month from the date of receipt of the Products by the Buyer.

9     COMPLIANCE

The Buyer shall:­

9.1. Provide FEGANS with any information in its possession which could reasonably enable FEGANS to comply with any regulatory requirements applicable to FEGANS; and

9.2. Comply with all legal requirements from time to time in force relating to the storage and sale of the Products.

10   DEFAULT BY THE BUYER

10.1 If the Buyer:

10.1.1. Fails to comply with any of the present terms and conditions (including stipulations as to payment); or

10.1.2. Commits an act of bankruptcy makes an arrangement or composition with creditors or suffers any distress or execution or a receiver, liquidator, examiner or analogous person is appointed in respect of the Buyer;

then, in any such event, FEGANS shall have the right (without prejudice to any other remedies) to cancel any uncompleted order and withhold or suspend delivery of further Products, and to demand payment forthwith of all sums due by the Buyer to FEGANS.

10.1.3 In the event FEGANS exercises any rights it may have to stop Products in transit under clause 13.1 above, FEGANS may at its option resell such Products without notice to the Buyer and without affecting FEGANS’s rights to hold the Buyer liable for any loss or damage by breach of contract by the Buyer.

11   CHANGE IN CONTROL OR LEGAL PERSONALITY

If there is a change in control of the Buyer or if there is a change in the legal personality, status or identity of the Buyer, the Buyer shall forthwith inform FEGANS. If the Buyer is an individual, a company or other legal person and seeks to commence trading through a different legal person, such other person shall not constitute the Buyer for the purpose of these terms and conditions until it has completed FEGAN’S Application for Credit Facilities form to the satisfaction of FEGANS and the Buyer shall notify FEGANS of such intention in writing as soon as possible and in any event prior to the commencement of trading by the other person.

12   DURATION AND TERMINATION

12.1. Rights to Terminate

12.1.1. FEGANS will be entitled to terminate any contract governed by the present terms and conditions forthwith if:-

(a). there is at any time a material change in the management, ownership, legal status or control of the Buyer; or

(b).the Buyer fails to pay for the Products within the period set out in clause 6.1 hereof;

(c).the Buyer commits any breach of any of the present terms and conditions;

(d).an encumbrance takes possession or a receiver is appointed over any of the property or assets of the Buyer;

(e).the Buyer makes any voluntary arrangements with its creditors or becomes subject to an examination order;

(f). the Buyer goes into liquidation;

(g).that other party ceases, or threatens to cease, to carry on business.

12.1.2. For the purposes of clause 15.2.1, a breach will be considered capable of remedy if the Buyer can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).

The rights to terminate any contract governed by the present terms and conditions will be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.

13   CONSEQUENCE OF TERMINATION

Upon termination of any contract governed by the present terms and conditions for any reason:

16.1. FEGANS will be entitled (but not obliged) to repurchase from the Buyer all or part of any Products whose title has been transferred to the Buyer and held by the Buyer at their Invoice Value or the value at which they stand in the books of the Buyer, whichever is the lower, provided that the Buyer will be responsible for arranging, and for the cost of, transport and insurance;

16.2. outstanding unpaid invoices rendered by FEGANS in respect of the Products will become immediately payable by the Buyer and invoices in respect of Products ordered prior to termination but for which an invoice has not been submitted will be payable immediately upon submission of the invoice;

16.3. the Buyer shall cease to promote, market or advertise the Products;

16.4. the provisions of clauses 13.2, 14 and this 16.4 will continue in force in accordance with their respective terms;

16.5. the Buyer will have no claim against FEGANS for loss of rights to sell the Products irrespective of the nature of such rights, compensation for loss of goodwill or any similar loss;

subject as otherwise provided herein and to any rights or obligations which have accrued prior to termination, neither party will have any further obligations to the other under the present terms and conditions.

14   MISCELLANEOUS

14.1. Assignment: The Buyer shall not either in whole or in part assign or transfer or purport to assign or transfer to any other person any contract governed by the proposed terms and conditions or the benefit thereof or the benefit of any condition, warranty or guarantee or other term or condition (express or implied) forming part thereof or relating to the Products. FEGANS may assign or transfer the benefit of all or any part of any contract governed by the present terms and conditions.

14.2 Whole Agreement: The present terms and conditions including the documents and instruments referred to herein supersedes all prior representations, arrangements, understandings and agreements between the parties hereto relating to the subject matter hereof, and sets forth the entire, complete and exclusive agreement and understanding between the parties relating to the subject matter hereof. No party has relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in the present terms and conditions.

14..2. Variation: The present terms and conditions may not be released, discharged, supplemented, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties hereto.

14.3. Confidentiality: Save as required by law, the parties agree that any information concerning the business or operations of either party which is disclosed to the other party or its agents or representatives shall be deemed confidential and therefore not be disclosed to any third party unless such information is of public record or knowledge or becomes available to the other party on a non-confidential basis from a source other than the disclosing party or its representatives. The confidential information described above shall not be used by the parties other than for the purpose of implementing the present terms and conditions.

14.4. Forbearance and Waiver: The right of a party will not be prejudiced or restricted by any indulgence or forbearance extended to another party or other parties. Any liability to either party (the “Waiving Party”) under these.

14.5. Terms and Conditions may be in whole or in part released, varied, compounded or compromised by the Waiving Party in its absolute discretion as regards the other party (“the Released Party”) or other party under such liability without in any way prejudicing or affecting its rights against any other party under the same or a like liability whether joint or several or otherwise. A waiver by the Waiving Party of any breach by any party hereto of any of the present terms and conditions or the acquiescence of the Waiving Party in any act (whether commission or omission) which but for such acquiescence would be a breach as aforesaid will not constitute a general waiver of such term, provision or condition or of any subsequent act contrary thereto.

14.6. Severability: All the present terms and conditions are distinct and severable, and if any term or provision is held unenforceable, illegal or void in whole or in part by any court, regulatory authority or other competent authority it shall to that extent be deemed not to form part of the present terms and conditions, and the enforceability, legality and validity of the remainder of the present terms and conditions will not be affected; provided that, in any case where as a result of the operation of this clause the rights or obligations of FEGANS are materially altered to the detriment of FEGANS, FEGANS may terminate any contract governed by the present terms and conditions within 30 days from the date of the relevant decision of the relevant court, regulatory authority or other competent authority.

14.7. Force Majeure: FEGANS will be excused from performance of its obligations under this Agreement if and to the extent that such performance is hindered or prevented (directly or indirectly) by reason of any strike, lockout, harbour disturbance, government action, riot, armed conflict, accident, unavailability or breakdown of normal means of transport, act of God or any other matter whatsoever beyond the control of FEGANS.

14.8. Notices:

14.8.1. Any notice or other communication given or made under the present terms and conditions shall be in writing and may be delivered to the relevant party or sent by pre-paid registered post or telecopier to the address of that party specified in the present terms and conditions or to that party’s telecopier number thereat or such other address or number as may be notified hereunder by that party from time to time for this purpose and will be effective notwithstanding any change of address or telecopier number not so notified.

14.8.2. Unless the contrary is proved, each such notice or communication will be deemed to have been given or made and delivered, if by post 48 hours after posting, if by delivery when left at the relevant address or, if by telecopier upon transmission, subject to receipt by the addressee of the complete text in legible form.

14.9. Governing Law: The present terms and conditions shall be governed and construed in all respects in accordance with the laws of the Republic of Ireland.

14.10. Jurisdiction. The Irish courts shall have exclusive jurisdiction to hear and determine any dispute arising out of or in connection with the above terms and conditions or the implied terms arising therefrom.