CONDITIONS OF SALE
The following definitions and rules of interpretation apply in these Conditions.
|“Brennan & Company”||Means P.J. Brennan & Company Limited trading as Brennan & Company whose registered office is at 61 Birch Avenue, Stillorgan Industrial park, Stillorgan, Co. Dublin with company number 24218.|
|“Business Day”||Means a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.|
|“Commencement Date”||Has the meaning given in clause 2.1.|
|“Conditions”||Means these terms and conditions as amended from time to time in accordance with clause 16.7.|
|“Contract”||Means the contract between Brennan & Company and the Customer for the supply of Goods and/or Services in accordance with these Conditions.|
|“Controller, processor, date subject, personal data, personal data breach, processing and appropriate technical measures”||Means as defined in the Data Protection Legislation.|
|“Customer”||Means the person or firm who purchases the Goods and/or Services from Brennan & Company.|
|“Data Protection Legislation”||Means all applicable data protection and privacy legislation in force from time to time in Ireland including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Acts 1988-2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.|
|“Delivery Location”||Has the meaning given in clause 4.2.|
|“Goods”||Means the goods (or any part of them) set out in the Order (to include consumables and equipment purchased by the Customer).|
|“Goods Specification”||Means any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and Brennan & Company.|
|“Intellectual Property Rights”||Means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|“Order”||Means the Customer’s order for the supply of Goods and/or Services, as set out the invoice furnished to the Customer.|
|“Quotation”||Means Brennan & Company’s quotation to the Customer in respect of the Customer’s Order.|
|“Retail Work”||Means work performed and invoiced by Brennan & Company for the Customer on the basis of time and materials.|
|“Services”||Means the services, supplied by Brennan & Company to the Customer as set out in the Service Specification.|
|“Service Level Agreement”||Means the Service Level Agreement entered into between Brennan & Company and the Customer in relation to specific Goods supplied, details of which are set out therein.|
|“Service Specification”||Means the description or specification for the Services provided by Brennan & Company to the Customer.|
|“Supplier”||Means Brennan & Company.|
|“Supplier Materials”||Has the meaning given in clause 8.1.8.|
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.4 A reference to writing or written includes email.
2.1 Each order placed by a Customer with Brennan & Company shall be deemed to be an offer by the Customer to purchase the Goods listed in the Order, subject to these Conditions.
2.2 Brennan & Company may at any time accept or reject all or part of such offer for any reason whatsoever, without giving reasons. Brennan & Company is deemed to have accepted the Customer’s Order when Brennan & Company issue their Quotation to the Customer and the Customer provides Brennan & Company with a PO number, thereby accepting Brennan & Company’s Quotation, at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 Any samples, drawings, descriptive matter or advertising issued by Brennan & Company and any descriptions of the Goods or illustrations or descriptions of the Goods or Services contained in Brennan & Company’s catalogues or brochures or on Brennan & Company’s website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any Quotation given by Brennan & Company shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in Brennan & Company’s catalogue and on Brennan & Company’s website and more specifically as are set out in the Order and the Quotation documentation supplied to the Customer.
3.2 To the extent that the Goods are to be manufactured/supplied in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify Brennan & Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Brennan & Company arising out of or in connection with any claim made against Brennan & Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Brennan & Company’s use of the Goods Specification. This clause 3.2 survive termination of the Contract.
3.3 Brennan & Company reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and Brennan & Company shall notify the Customer in any such event.
4.1 Brennan & Company shall ensure that each delivery of the Goods is accompanied by a delivery note which shows all relevant Customer and Brennan & Company reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable).
4.2 Brennan & Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after Brennan & Company notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed when the Goods are placed at the Customer’s disposal at the Delivery Location. Where delivery has been agreed with the Customer to be ex-works, delivery shall be deemed to be complete when Brennan & Company notifies the Customer that the Goods are ready for collection.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Brennan & Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, any other event outside of Brennan & Company’s control or the Customer’s failure to provide Brennan & Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Brennan & Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Brennan & Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Brennan & Company with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of Brennan & Company notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Brennan & Company’s failure to comply with its obligations under the Contract in respect of the Goods:
- 4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Brennan & Company notified the Customer that the Goods were ready; and
- 4.6.2 Brennan & Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which Brennan & Company notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Brennan & Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.8 Brennan & Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 Brennan & Company warrants that on delivery, and for the lesser of (i) the warranty period set out in the manufacturer’s specifications/directions for use or (ii) a period of 12 months from the date of delivery (“warranty period”) the Goods shall:
- 5.1.1 conform with their description;
- 5.1.2 be free from material defects in design, material and workmanship; and
- 5.1.3 be fit for any purpose held out by Brennan & Company.
5.2 Subject to clause 3, if:-
- 5.2.1 the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 1;
- 5.2.2 Brennan & Company is given a reasonable opportunity of examining such Goods; and
- 5.2.3 the Customer (if asked to do so by Brennan & Company) returns such Goods to Brennan & Company’s place of business at the Customer’s cost,
Brennan & Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Brennan & Company shall not be liable for the Goods’ failure to comply with the warranty in clause 1 if:
- 5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 2;
- 5.3.2 the defect arises because the Customer failed to follow Brennan & Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
- 5.3.3 the defect arises as a result of Brennan & Company following any drawing, design or Goods Specification supplied by the Customer;
- 5.3.4 the Customer alters or repairs such Goods without the written consent of Brennan & Company;
- 5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
- 5.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, Brennan & Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Brennan & Company.
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Brennan & Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that Brennan & Company has supplied to the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
- 6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Brennan & Company’s property
- 6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- 6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Brennan & Company’s behalf from the date of delivery;
- 6.3.4 notify Brennan & Company immediately if it becomes subject to any of the events listed in clause 1.2 to clause 14.1.4; and
- 6.3.5 give Brennan & Company such information relating to the Goods as Brennan & Company may require from time to time.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 1.2 to clause 14.1.4, then, without limiting any other right or remedy Brennan & Company may have:
- 6.4.1 the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
- 6.4.2 Brennan & Company may at any time:
- require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
- if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.1 Brennan & Company shall supply the Services to the Customer in accordance with the Service Specification in all material respects and in line with the terms of the Service Level Agreement. The Service Level Agreement in place between the parties sets out in more detail the level of the Services to be provided.
7.2 Brennan & Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order form or Quotation but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 Brennan & Company reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Brennan & Company shall notify the Customer in any such event.
7.4 Brennan & Company warrants to the Customer that the Services will be provided using reasonable care and skill.
8.1 The Customer shall:
- 8.1.1 ensure that the terms of the Order are complete and accurate as Orders cannot be amended or cancelled once they have been received by Brennan & Co;
- 8.1.2 co-operate with Brennan & Company in all matters relating to the Services;
- 8.1.3 provide Brennan & Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Brennan & Company to provide the Services;
- 8.1.4 provide Brennan & Company with such information and materials as Brennan & Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- 8.1.5 prepare the Customer’s premises for the supply of the Services;
- 8.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- 8.1.7 comply with all applicable laws, including health and safety laws; and
- 8.1.8 keep all materials, equipment, documents and other property of Brennan & Company (“Supplier Materials“) at the Customer’s premises in safe custody at its own risk, maintain Brennan & Company Materials in good condition until returned to Brennan & Company, and not dispose of or use Brennan & Company Materials other than in accordance with Brennan & Company’s written instructions or authorisation.
8.2 If Brennan & Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default“):
- 8.2.1 without limiting or affecting any other right or remedy available to it, Brennan & Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Brennan & Company’s performance of any of its obligations;
- 8.2.2 Brennan & Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Brennan & Company’s failure or delay to perform any of its obligations as set out in this clause 2; and
- 8.2.3 the Customer shall reimburse Brennan & Company on written demand for any costs or losses sustained or incurred by Brennan & Company arising directly or indirectly from the Customer Default.
9.1 The price for Goods:
- 9.1.1 shall be the price set out in the Quotation or Order or, if no price is quoted, the price set out in Brennan & Company’s published price list as at the date of the order; and
- 9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer unless otherwise specified to the Customer in writing.
9.2 The charges for Services shall be calculated on a time and materials basis:
- 9.2.1 the charges shall be calculated in accordance with Brennan & Company’s hourly fee rates, as set out in the Order or Quotation;
- 9.2.2 Brennan & Company shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Brennan & Company engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Brennan & Company for the performance of the Services, and for the cost of any materials.
9.3 Brennan & Company reserves the right to:
- 9.3.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date; and
- 9.3.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Brennan & Company that is due to:
- any factor beyond the control of Brennan & Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
- any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Brennan & Company adequate or accurate information or instructions in respect of the Goods.
9.4 In respect of Goods, Brennan & Company shall invoice the Customer at the time of dispatch of the Goods.
9.5 In respect of Services, Brennan & Company shall invoice the Customer (i) annually in advance for Service or (ii) on completion for Retail Work.
9.6 The Customer shall pay each invoice submitted by Brennan & Company:
- 9.6.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by Brennan & Company and confirmed in writing to the Customer; and
- 9.6.2 in full and in cleared funds to a bank account nominated in writing by Brennan & Company, and time for payment shall be of the essence of the Contract.
9.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT“). Where any taxable supply for VAT purposes is made under the Contract by Brennan & Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from Brennan & Company, pay to Brennan & Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.8 If the Customer fails to make a payment due to Brennan & Company under the Contract by the due date, then, without limiting Brennan & Company’s remedies under clause 14 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8will accrue each day at 4% a year above the EURIBOR’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Brennan & Company and/or its licensors.
10.2 The Customer grants Brennan & Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, copy and modify any materials provided by the Customer to Brennan & Company for the term of the Contract for the purpose of providing the Services to the Customer.
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
11.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Brennan & Company is the processor. In certain circumstances, Brennan & Company may act as a processor of the Customer’s personal data e.g. AML compliance.
11.3 Without prejudice to the generality of clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Brennan & Company for the duration and purposes of the Contract.
11.4 Without prejudice to the generality of clause 1, Brennan & Company shall, in relation to any personal data processed in connection with the performance by Brennan & Company of its obligations under the Contract:
- 11.4.1 process that personal data only on the documented written instructions of the Customer unless Brennan & Company is required by Applicable Laws to otherwise process that personal data. Where Brennan & Company is relying on Applicable Laws as the basis for processing personal data, Brennan & Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Brennan & Company from so notifying the Customer;
- 11.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- 11.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- 11.4.4 not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- the Customer or Brennan & Company has provided appropriate safeguards in relation to the transfer;
- the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
- Brennan & Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- Brennan & Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
- 11.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- 11.4.6 notify the Customer without undue delay on becoming aware of a personal data breach;
- 11.4.7 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
- 11.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of Brennan & Company, an instruction infringes the Data Protection Legislation.
11.5 The Customer consents to Brennan & Company appointing third party processors of personal data under the Contract, if required.
11.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2.
12.2 Each party may disclose the other party’s confidential information:
- 12.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
- 12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
13.1 Brennan & Company has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in this clause reflect the insurance cover Brennan & Company has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
13.2 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- 13.4.1 death or personal injury caused by negligence; or
- 13.4.2 fraud or fraudulent misrepresentation.
13.5 Subject to clause 4, Brennan & Company’s total liability to the Customer shall not exceed the sums payable by the Customer to Brennan & Company within the six month period preceding the event giving rise to the claim. Brennan & Company’s liability under this agreement shall be limited to a period of one year from the date of delivery of the Goods or provision of the Services to the Customer.
13.6 The following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
13.7 Unless the Customer notifies Brennan & Company that it intends to make a claim in respect of an event within the notice period, Brennan & Company shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.8 Where there is a defect in any of the Goods supplied, Brennan & Company may, at its discretion, either repair or replace the Goods, or issue a credit note to the Customer provided that:
- 13.8.1 Brennan & Company is notified in writing within 7 days of the discovery of any such defect by the Customer and in any event no later than 10 days from the delivery of the Goods;
- 13.8.2 The Good in question is returned to Brennan & Company at the cost of the Customer where Brennan & Company does not accept liability and at the costs of Brennan & Company where Brennan & Company does accept liability for the defect in the Goods;
- 13.8.3 An examination of the defective product supplied by Brennan & Company shall disclose to its satisfaction that the defect existed at the time of delivery of the Goods and in particular that the Goods shall not have been affected by the misuse, neglect, accident, improper storage, installation or handling or by repair or alteration not effected by Brennan & Company.
13.9 This clause 13 shall survive termination of the Contract.
14.1 Without affecting any other right or remedy available to it, Brennan & Co may terminate the Contract with immediate effect by giving written notice to the Customer if:
- 14.1.1 the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
- 14.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- 14.1.3 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- 14.1.4 the Customer’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.2 For the purposes of clause 14.1 “material breach” means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which Brennan & Company would otherwise derive from any of the obligations set out in this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
14.3 Without affecting any other right or remedy available to it, Brennan & Company may terminate the Contract with immediate effect by giving written notice to the Customer if (i) the Customer fails to pay any amount due under the Contract on the due date for payment or (ii) where there is a change of Control of the Customer.
14.4 Without affecting any other right or remedy available to it, Brennan & Company may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Brennan & Company if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 1.2 to clause 14.1.4, or Brennan & Company reasonably believes that the Customer is about to become subject to any of them.
15.1 On termination of the Contract:
- 15.1.1 the Customer shall immediately pay to Brennan & Company all of Brennan & Company’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Brennan & Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- 15.1.2 the Customer shall return all of Brennan & Company Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then Brennan & Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
16.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
16.2 Assignment and other dealings
- 16.2.1 Brennan & Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- 16.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Brennan & Company.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email address to the address specified in the Order.
- 16.3.1 Any notice shall be deemed to have been received:
- (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
- (b) if sent by pre-paid registered or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
- (c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00am to 5.00pm on a Business Day.
- 16.3.2 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 16.4 shall not affect the validity and enforceability of the rest of the Contract.
16.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.6 Entire agreement.
- 16.6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- 16.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
- 16.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
16.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
16.8 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of
16.9 Jurisdiction. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
16.10 Conflict. Where there is any dispute between these Terms and Conditions and the Service Level Agreement, the Terms and Conditions shall apply.