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TERMS & CONDITIONS

  1. General

(a) The Terms and Conditions shall apply to all sales by Alken Brothers Wine Merchants Limited (“Seller”) to you (“Buyer”). No variation or purported variation (including any other terms that Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing), shall have effect unless expressly agreed to in writing by Seller.

(b) There shall be no Contract between Seller and Buyer until the Order is accepted in writing by Seller. Seller’s published price list shall not be considered an offer by Seller to Buyer. The Order constitutes an offer by Buyer to purchase the Goods in accordance with these Terms and Conditions. Buyer is responsible for ensuring the terms of the Order are complete and accurate.

(c) The contractual rights which Buyer enjoys by virtue of the Sale of Goods Acts 1893 and 1980 (as amended) shall be excluded from the Contract between Buyer and Seller (if Buyer is not dealing as a consumer or in the case of an international sale of goods) to the extent permitted by law.

(d) It is our policy to not sell alcohol to anyone under the age of eighteen in accordance with Irish law. By placing an order with us you are confirming you are over eighteen. If the wine you purchase is a gift then the recipient must also be over eighteen.

  1. Interpretation

(a) Definitions:-

  1. Buyer – the person or the company who purchases the Goods from Seller;

ii.Contract – the contract between Seller and Buyer for the sale and purchase of the Goods in accordance with these Terms and

Conditions;

iii. Delivery Location – the location where the Goods are delivered which shall be agreed between the parties. Where Buyer collects the Goods, the Delivery Location shall be the location where the Goods are collected by Buyer and delivery shall be completed upon the loading of the Goods;

  1. Goods – the goods (or part of the goods) set out in the Order;

v.Order – Buyer’s order for the Goods in the agreed format between Buyer and Seller;

  1. Price – means the price for the Goods set out in Seller’s price list published from time to time and shall be exclusive of VAT and any other applicable taxes, unless otherwise agreed in writing by Seller;

vii. Seller – Alken Brothers Wine Merchants Limited; and

viii. Terms and Conditions – the terms and conditions set out in this document, which are the terms and conditions that govern the Contract between Seller and Buyer.

(b) Interpretation:-

  1. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
  2. 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;

iii. Headings are inserted for convenience only and do not affect the construction of this Agreement; and

  1. 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.
  2. Delivery

(a) Any times quoted for delivery are estimates only and time shall not be of the essence with respect to delivery.

(b) Seller shall be entitled to make partial deliveries or deliveries by instalments and the Terms and Conditions herein contained shall apply to each partial delivery.

(c) Seller shall deliver the Goods to the Delivery Location. Each delivery of the Goods will be accompanied by a delivery note showing the type and quantity of the Goods and where the Goods are delivered by instalments the outstanding balance of Goods remaining to be delivered.

(d) Delivery is completed upon the unloading or loading of the Goods at the Delivery Location.

(e) If the Goods are not received by Buyer within six days form the date of the relevant invoice, the carrier and Seller must be immediately informed.

(f) Deviations in the quantity of the Goods (representing no more than 10 per cent by value) from that stated in the Contract shall not give

Buyer any right to reject the Goods or to claim damages and Buyer shall be obliged to accept and pay at the Price for the quantity of the

Goods delivered and a pro-rata adjustment shall be made on the invoice.

(g) Buyer shall be deemed to have accepted the Goods delivered by the signing of the delivery docket or other equivalent document and such delivery docket or equivalent document duly signed by or on behalf of Buyer shall be conclusive as to the type and quantity of Goods delivered. Signature for this purpose means any form of signature by or on behalf of Buyer, including but not limited to electronic signature.

(h) Seller shall not be liable for any delay in delivery of the Goods where such delay is caused by a force majeure event (as set out at clause

[11]) or by Buyer’s failure to provide Seller with adequate delivery instructions.

  1. Transfer of Ownership

(a) Notwithstanding delivery and passing of risk, the property and title in the Goods shall not pass to Buyer until Buyer has discharged all sums due for the Goods by Buyer to Seller. Title shall pass at the time of payment of all such sums.

(b) Until title to the Goods passes to Buyer:-

  1. Buyer shall hold the Goods as bailee and fiduciary agent of Seller;
  2. Buyer shall keep the Goods properly stored and protected and in such manner that the Goods are clearly identifiable as the property of Seller;

iii. Buyer agrees that any Goods of a brand manufactured or distributed by Seller shall be presumed to have been supplied by Seller; and

  1. Seller may by notice in writing revoke the authority of Buyer to sell the Goods.

(c) If before the title to the Goods passes to Buyer, Buyer becomes subject to any of the events at clause 8 then without limiting any other right or remedy Seller may have:

  1. Buyer’s right to resell the Goods in the ordinary course of its business ceases immediately; and
  2. Seller may at any time require Buyer to deliver up all Goods in its possession and where Buyer fails to do so, Seller may promptly enter any premises of Buyer where the Goods are stored to recover them.

(d) If notwithstanding a withdrawal of the authority to sell the Goods in accordance with the provisions of this clause 4, Buyer its servants or agent sell any of the Goods, following such a withdrawal, the following provisions shall apply:

  1. Buyer, its servant, or agent shall hold on trust for Seller the proceeds of sale of the Goods;
  2. If requested by Seller, Buyer, its servant or agent shall open and maintain a separate Bank account for the proceeds of the Goods sold after the date of an event referred to in clause 8, such account to be designated to the order of Seller and maintain separate records identifying the proceeds of sale received in respect of the Goods sold after such date; and
  3. Buyer hereby appoints Seller as its attorney for the purpose of collecting the proceeds of sale in respect of any of the Goods resold by

Buyer, its servants. or agents after the date of an event referred to in clause 8 including the institution of proceedings in the name of Buyer and Buyer shall give to Seller such assistance as Seller may require to pursue such a claim.

  1. Risk of Loss or Damage

(a) Risk in the Goods shall pass to Buyer on completion of delivery at the Delivery Location;

(b) Upon the transfer of risk in the Goods to Buyer and until the title has transferred to Buyer, Buyer shall;

  1. Indemnify and keep indemnified Seller against all loss of and damage to the Goods and against any reduction in the re-sale value of the

Goods below the Price;

  1. Insure and keep insured the Goods for an amount at least equal to the Price together with VAT and any applicable taxes or duties to be paid by Buyer and any other costs to be paid by Buyer in accordance with these Terms and Conditions; and

iii. Hold upon trust for Seller absolutely all proceeds of such insurance.

  1. Price and Payment

(a) Seller reserves the right at any time prior to delivery of the Goods to adjust the Price to take account of any increase in the costs to it of materials, labour, services and any applicable taxes, duties or of any currency differences or fluctuations which increase the costs to it of

Goods supplied to Buyer under these Terms and Conditions.

(b) Unless otherwise stated, the Price includes cost of delivery to the Delivery Location and insurance in transit.

(c) Unless otherwise agreed in writing, payment for the Goods shall be made by Buyer prior to delivery.

(d) Seller, at Seller’s sole discretion, may grant credit terms but such terms must be agreed in writing by Seller.

(e) Payment by Buyer to Seller for Goods shall be made to Seller’s nominated bank account. The payment shall be made to the bank account nominated in full and in cleared funds. Time of payment is of the essence.

(f) Where Buyer attempts to make a payment and payment is refused or held to be unacceptable by the bank account nominated, Buyer shall be liable to pay any resulting bank or other charges incurred by Seller.

(g) Where Buyer fails to make payment when due to Seller, then Buyer shall pay interest on the overdue amount at the rate of 3% per annum above Bank of Ireland’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until date of actual payment of the overdue amount. Buyer shall pay the interest together with the overdue amount.

(h) Buyer shall pay the Price in full without set-off, counterclaim, deduction or any withholding whatsoever. Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by Buyer against any amounts payable by Seller to Buyer.

  1. Remedies for Any Defects

(a) If by reason of any defect in the Goods there shall be a breach of any implied condition or warranty applicable thereto, Seller shall at its option either repair or replace the Goods or issue credit to Buyer, provided that:

  1. Seller is notified in writing within 7 days of the discovery of any such defects by Buyer and in any event not later than 14 days after delivery;
  2. The relevant Goods are returned to Seller at the cost of Buyer;

iii. Examination of such Goods by Seller shall disclose to its satisfaction that a breach of an implied condition or warranty has occurred, and in particular that the Goods have not been affected by misuse, neglect, accident, improper storage, installation, or handling or by repair or alteration; and

  1. Buyer shall pay to Seller the cost (as stated by Seller) of any examination of the Goods where Seller does not find that a breach of an implied condition or warranty has occurred.

(b) Seller’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, resale, replacement or use of any of the Goods shall in no case exceed the price paid by Buyer to Seller for the Goods which give rise to the claim, plus expenses of customs, taxes, freight and insurance. Nothing contained in this clause shall by implication create any liability or obligation on the part of Seller, or effect or diminish any disclaimer or liability elsewhere contained herein.

(c) Seller shall under no circumstance whatsoever be liable for any loss of profits or special or consequential damages suffered by Buyer, including interest charges.

(d) Except as expressly stated above all other warranties, conditions and representations, express or implied, statutory or otherwise, in relation to the quality or fitness, for any particular purpose of the Goods are hereby excluded and Seller shall not be liable in contract, tort, or otherwise for any loss, damage, expense or injury of any kind whatsoever, consequential or otherwise, arising out of or in connection with the Goods 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.

(e) Seller’s liability under this provision shall be limited to a period of one year from the date of receipt of the Goods by Buyer.

(f) Nothing in this clause shall limit or exclude Seller’s liability for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; of other matter in respect of which it would be unlawful for

Seller to exclude or restrict liability.

(g) Buyer shall not reject any Goods or cancel or purport to cancel the Contract or any part of it because of an alleged default unless and until

Seller shall have failed to remedy such alleged default within thirty days of written notice to Seller specifying the default.

  1. Termination

(a) Without limiting its other rights or remedies, Seller may terminate the Contract with immediate effect by giving written notice to Buyer if:

  1. Buyer commits a material breach of any term of the Contract and, where such breach can be remedied, fails to remedy that breach within 20 days of Buyer being notified in writing to do so;
  2. Any steps or action in connection with the appointment of a receiver, manager, examiner, or liquidator in relation to any part of the business or property of Buyer;

iii. Any steps or action in connection with a petition to wind up the business of Buyer or any notice of a resolution to wind up Buyer (save for the purpose of a reconstruction or amalgamation on terms previously approved in writing by Seller);

  1. Any steps or action in connection with a petition for the adjudication in bankruptcy of Buyer;
  2. Any steps or action in connection with any decision by Buyer that Buyer intends to make an arrangement with its creditors;
  3. Or any steps or action are taken in another jurisdiction in connection with any equivalent procedure in that relevant jurisdiction, in relation to points ii. to v. above;

vii. Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

viii. Buyer’s financial position deteriorates to such an extent that in Seller’s opinion Buyer cannot adequately fulfil its obligations under the Contract.

(b) Without limiting its other rights or remedies, Seller may suspend provision of the Goods under the Contract or any other contract between

Buyer and Seller if Buyer becomes subject to any of the events listed in clause 8(a), or Seller reasonably believes that Buyer is about to become subject to any of them, or if Buyer fails to pay any amount due under this Contract on the due date for payment.

(c) Without limiting its other rights or remedies, Seller may terminate the Contract with immediate effect by giving written notice to Buyer if

Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 20 days after being notified in writing to make such payment.

(d) On termination of the Contract for any reason Buyer shall immediately pay to Seller all of Seller’s outstanding unpaid invoices and interest.

Seller may also, at its own option, stop any Goods in transit.

(e) In the event Seller exercises any rights it may have to stop Goods in transit, Seller may at its option resell such Goods at public or private sale without notice to Buyer and without affecting Seller’s rights to hold Buyer liable for any loss or damage caused by breach of contract by Buyer.

(f) Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

(g) Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

  1. Infringement

Buyer shall indemnify Seller against all damages, penalties, costs and expenses to which Seller may become liable as a result of work done or the supply of goods in accordance with Buyer’s specifications which involves the infringement of any letters patent, registered design, copyrights, trademark or trade name or other rights of confidentiality of information or industrial, commercial or intellectual property of a third party.

  1. Confidentiality

(a) Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 10.

(b) Each party may disclose the other party’s confidential information:

  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 10; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) 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.

  1. Force Majeure

Seller shall not be under any liability of whatever kind for non-performance in whole or in part of its obligation under the contract due to causes beyond the control of Seller or beyond the control of Seller’s suppliers including, but not limited to, war (whether an actual declaration thereof is

made or not), sabotage, insurrection, riot, or other act of civil disobedience, acts of Buyer or a third party, failure or delay in transportation, acts of any Government or any agency or sub-division thereof, Government regulation, judicial actions, labour disputes, strikes, embargoes, illness, accident, fire, explosion, flood, tempest, unavailability, breakdown or delay in transportation. Delay in delivery to Seller or Seller’s suppliers or shortages of labour, fuel, raw materials or machinery or technical failure, or act of God or any other matter whatsoever beyond the control of

Seller. In such event, Seller may, without liability, cancel or vary the terms of contract including, but not limited to, extending the time for performing the contract for a period at least equal to the time lost by reason of such causes.

  1. Change in control or Legal status

If there is a change in control, or a proposed change in control of Buyer, or a change or proposed change in the legal status or identity of Buyer,

Buyer shall forthwith inform Seller in writing outlining the details of the change or proposed change. In order for Buyer to become a Buyer for the purposes of these Terms and Conditions, Buyer must complete an Account Opening Form to the satisfaction of Seller and Seller has confirmed its satisfaction to Buyer in writing prior to the commencement of trading by Buyer post the change in control or legal status.

  1. Assignment

(a) Buyer shall not assign or transfer or purport to assign or transfer to any other person any contract which is subject to these Terms and

Conditions or the benefit of any condition, warranty or guarantee or other term or condition (express or implied) forming any part of these

Terms and Conditions or relating to the Goods, without the prior written consent of Seller.

(b) Seller may at any time assign or transfer in any manner all or any of its rights or obligations under any contract with Buyer.

(c) These Terms and Conditions and any contract or arrangement governed hereby shall apply to and be binding on successors and permitted assigns of Seller and the successors and permitted assigns or the administrators or executor of Buyer as the case may be.

  1. Severability

If at any time any one or more of the provisions hereof is or becomes invalid, illegal or unenforceable in any respect, the remaining provisions shall be deemed to be severable and the validity, legality and enforceability of such remaining provisions hereof shall not in any way be affected or impaired thereby

  1. Variation

No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  1. Waiver

A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

(a) waive that or any other right or remedy; nor

(b) prevent or restrict the further exercise of that or any other right or remedy

  1. 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, or email.

(b) A notice or any other communication shall be deemed to have been received: if delivered when left at the address referred to in clause 17; 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 email, 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.

  1. Governing Law

This contract shall be governed and construed in all respects in accordance with the laws of the Republic of Ireland and the Irish courts shall have exclusive jurisdiction to hear and determine any dispute arising out of or in connection with these Terms and Conditions.