Fitzgerald Commercials Inspection Division FCID-T&C Iss 3

Terms and conditions of the supply of inspection services
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY)

1.INTERPRETATION
1.1 Definitions: In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Deliverables: the deliverables set out in the Order and relating to vehicle inspection services produced by the Supplier for the Customer.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer’s order for Services as set out in the Customer’s written acceptance of the Supplier’s quotation.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Order.
Supplier: Fitzgerald Commercials Inspection Division (FCID) is part of the Fitzgerald Commercials Ltd which has been in operation servicing the commercial vehicle trade for 16 years. a private company registered in Dublin with company number 373732 whose registered office is at Youghal Road, Midleton, Co Cork
Supplier Materials: has the meaning set out in clause 4.1(e).
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted;
(d) a reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(e) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(f) a reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (“Commencement Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 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 trade, custom, practice or course of dealing.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 60 Business Days from its date of issue.

3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Order in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer within a reasonable time in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 If the Customer fails to pay any invoice or other charges which are properly due to be paid to the Supplier, the Supplier shall be entitled to withhold from issue any certificate which was specified in the Order and requested by the Customer. Provided the Customer pays the Supplier’s invoice in accordance with this Contract, the Supplier will issue a relevant certification specified in the Order within 5 Business Days of the Services being provided and the Supplier’s charges being paid.

4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Order are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) keep and maintain all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation
(f) prepare the Customer’s premises for the supply of the Services;
(g) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and
(h) complete the relevant safety related documentation provided by the Supplier in advance of the Services commencing.
(i) accept the inspector’s decisions and conclusions are considered as final, particularly where any issue of safety related matters are involved.
(j) Accept the inspector is bound by the requirements of ISO/IEC17020 in conducting the inspection and testing work
(k) The inspector and his decisions and conclusions can only be challenged by adherence to the FCID complaints procedures
4.2 If the Supplier’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”):
(a) the Supplier shall (without limiting its other rights or remedies) 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 to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay performing any of its obligations as set out in this clause 4.2; and

(c) The Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default. If a vehicle fails to attend a pre-arranged appointment and the operator has not notified the administration department in time to divert the inspector (aborted visit); there will be a charge of €250.

5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be on a fixed fee basis and:
(a) the Charges shall be calculated in accordance with the Supplier’s standard inspection rates, as set out in the Order and pricing for any additional services not covered in the Order but which the Customer requests will be charged at the prevailing rates which are available upon request;
(b) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
5.2 [The Supplier reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 6 (six) month period. The Supplier will give the Customer written notice of any such increase 1 (one) month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within 2 weeks of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 1 (one) weeks’ written notice to the Customer.
5.3 The Supplier shall invoice the Customer on completion of the Services.
5.4 The Customer shall pay each invoice submitted by the Supplier:
(a) Within 30 days of the date of the invoice; and
(b) In full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above Barclays Bank plc.’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services are and will be owned by the Supplier.
6.2 The Customer acknowledges that, in respect of any third-party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.3 All Supplier Materials are the exclusive property of the Supplier.

7. CONFIDENTIALITY
A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.

8. LIMITATION OF LIABILITY:
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
8.2 Subject to clause 8.1:
(a) The Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of the Charges which are actually received by the Supplier from the Customer.
8.3 The Supplier shall in no circumstances be held liable by the Customer for the Customer’s default in arranging for the Supplier to supply the Services on or before a particular date. The responsibility in relation to arranging an inspection date rests entirely with the Customer.
8.4 This clause 8 shall survive termination of the Contract.

9. TERMINATION
9.1 Without limiting its other rights or remedies, either party shall have the right to terminate the Contract by giving the other party 1 (one) months’ written notice.
9.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) The other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 (five) days of that party being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of the Companies Act 2014 to 2017 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of the companies Act covering Insolvency and the Conveyancing and Law of Property Act 1881 or (being a partnership) has any partner to whom any of the foregoing apply or generally is subject to an insolvency-related event (such as, without limitation, administration, liquidation, receivership, creditors’ or members’ voluntary arrangement or similar or analogous action) or a proposed winding-up of the other party, solvent or otherwise;
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 5 (five) days after being notified in writing to do so.
9.4 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied

(b) but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(c) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier 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;
(d) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(e) Clauses which expressly or by implication survive termination shall continue in full force and effect.

11. FORCE MAJEURE
11.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
11.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 2 (two) weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

12. GENERAL
12.1 Assignment and other dealings
(a) Neither party may assign or otherwise dispose of its rights or obligations under the Contract.
12.2 Notices
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3 Severance
(a) 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 shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver
(a) A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right

(b) or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No partnership or agency
(a) Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Third parties
(a) A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7 Variation
(a) Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
12.8 Governing law
(a) This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of Ireland
12.9 Jurisdiction
(a) Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).