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Terms & Conditions

Full Terms & Conditions of Sale are set out below Kelly RAC ( Dublin) Ltd STANDARD TERMS AND CONDITIONS for the SUPPLY of GOODS & SERVICES The customer's attention is drawn in particular to the provisions of condition 10. 1. INTERPRETATION 1.1 In these Conditions, the following definitions apply: "Business Day" means a day (other than a Saturday, Sunday, public holiday or other day communicated to the Customer by Kellyrac when Kellyrac is closed for business) when banks are open for business; "Conditions" means the terms and conditions set out in this document as amended from time to time in accordance with condition 14.7; "Contract" means the contract between Kelly RAC ( Dublin) Ltd and the Customer for the sale and purchase of the Goods in accordance with these Conditions; "Customer" means the person or firm who purchases the Goods from Kelly RAC ( Dublin) Ltd "Goods" means the goods (or any part of them) set out in the Order; "Kellyrac" means Kelly RAC ( Dublin) Ltd (registered in IRELAND with company number 506872); Quin Road Business Park Quin Road Ennis Co.Clare. "Order" means the Customer's order for the Goods, as set out in the Customer's purchase or the Customer's written acceptance of Kellyrac’s quotation; "Specification" means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Kellyrac; "WEEE Regulations" means SI 2006/3289 The Waste Electrical and Electronic Equipment Regulations 2006. 1.2 In these Conditions, the following rules apply: 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 party includes its personal representatives, successors or permitted assigns; 1.2.3 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; 1.2.4 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; 1.3 A reference to writing or written includes faxes, e-mails and where appropriate any online order confirmation issued by Kellyrac. 2. BASIS OF CONTRACT 2.1 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. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification (or any specification provided by the Customer's customer) are complete and accurate. The Order shall only be deemed to be accepted and the Contract come into existence on the earlier of: 2.1.1 Kellyrac issuing a written acceptance of the Order; or 2.1.2 Kellyrac acting in a material manner reasonably deemed to be consistent with it having accepted the Order. 2.2 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 Kellyrac which is not set out in the Contract. 2.3 Any samples, drawings, descriptive matter, or advertising produced by Kellyrac and any descriptions or illustrations contained in Kellyrac's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force. 2.4 A quotation for the Goods given by Kellyrac shall not constitute an offer. All prices quoted are subject to revision or withdrawal by Kellyrac without prior notice. 3. VARIATION/CANCELLATION 3.1 No cancellation by the Customer is permitted except where expressly agreed by Kellyrac. . 3.2 Any variation in an Order which is accepted by Kellyrac shall entitle Kellyrac to make an appropriate variation in the price and delivery date of the Goods. 3.3 The Customer shall in the event of agreed cancellation indemnify Kellyrac in full against all expense and loss incurred up to the time of cancellation in accordance with the following formulae: 3.3.1 where the Customer cancels after the Goods (other than where the Goods are spare parts) have left Kellyrac's warehouse or our distributor but before they have been unpacked by the Customer or its agents a charge of 10% of the invoice value will be charged to the Customer plus any carriage charges incurred by Kellyrac; 3.3.2 where the Customer cancels after the Goods have left Kellyrac's warehouse and the Goods have been unpacked by the Customer or its agent then a charge of 25% of the invoice value will be charged to the Customer plus any downgrading amount necessary together with any carriage charges incurred by Kellyrac; 3.3.3 where the Customer cancels after the Goods, those Goods being spare parts, have left Kellyrac's or our distributors warehouse then a charge of 25% of the invoice value will, regardless of whether the Goods have been unpacked, be charged to the Customer plus any carriage charges incurred by Kellyrac, such charges, in each case, being a genuine estimate of the cost to Kellyrac and/or the loss in value of the Goods attributable to such cancellation. 4. GOODS 4.1 The Goods are described in kellyrac's website as modified by any applicable Specification. 4.2 To the extent that the Goods are to be manufactured or modified in accordance with a Specification supplied or quantity required by the Customer, the Customer shall indemnify kellyrac 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 and other reasonable professional costs and expenses) suffered or incurred by Kellyrac in connection with any claim made against Kellyrac for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Kellyrac’s use of the Specification. This condition 4.2 shall survive termination of the Contract. 4.3 Kellyrac reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements. 5. QUALITY 5.1 Kellyrac warrants that on delivery the Goods shall: 5.1.1 conform in all material respects with their description and any applicable Specification; and 5.1.2 be free from material defects in material and workmanship. 5.2 Subject to condition 5.4, if, during the period of 24 months from the date of delivery (the "Warranty Period"): 5.2.1 the Customer gives notice in writing to Kellyrac within a reasonable time of discovery that some or all of the Goods are defective; and 5.2.2 Kellyrac is given a reasonable opportunity of examining such Goods, Kellyrac shall, at its option and subject always to condition 5.3, repair or replace any defective parts. 5.3 The warranty in condition 5.2 shall apply to parts only and shall not cover: 5.3.1 labour save where the Customer has paid for an optional labour warranty from Kellyrac; 5.3.2 fabrication or cosmetic items not notified at the time of delivery; 5.3.3 shelves, baskets or fish trays; 5.3.4 light bulbs or tubes, gaskets; and 5.3.5 consumable items and breakables, further details of Kellyrac's 2 year parts warranty are available by request. 5.4 Kellyrac shall not be liable for the Goods' failure to comply with the warranty set out in condition 5.1 in any of the following events: 5.4.1 the Customer makes any further use of such Goods after giving notice in accordance with condition 5.2; 5.4.2 the defect arises because the Customer failed to follow Kellyrac's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods in respect of which it is the Customer's responsibility to ensure that it is in receipt on delivery or otherwise or (if there are none) good trade practice regarding the same; 5.4.3 the defect arises as a result of Kellyrac following any drawing, design or Specification supplied by the Customer; 5.4.4 the Customer alters or repairs such Goods without the prior written consent of Kellyrac; 5.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or 5.4.6 the Goods differ from their description or any applicable Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements. 5.5 Except as provided in this condition 5, Kellyrac shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in condition 5.1. 5.6 The terms implied of the Sale of Goods Act are, to the fullest extent permitted by law, excluded from the Contract. 5.7 These Conditions shall apply to any repaired or replacement Goods supplied by Kellyrac. 5.8 Kellyrac may but shall be under no obligation to pass to the Customer the benefit of any manufacturer's guarantee and shall have no liability should it elect not to do so. 6. DELIVERY 6.1 Kellyrac 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 Kellyrac notifies the Customer that the Goods are ready. Where the Delivery Location is anywhere other than Kellyrac's premises the Customer shall be responsible for providing proper unloading facilities (including adequate plant and labour) and storage facilities. 6.2 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location. Kellyrac shall not, unless expressly agreed in writing to the contrary, have any responsibility or liability in respect of any subsequent transportation or movement of the Goods. 6.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Kellyrac shall not be liable for any delay in delivery of the Goods that is caused by an event beyond its reasonable control or the Customer's failure to provide Kellyrac with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods ("Customer Default"). If the Customer fails to take delivery on the agreed delivery date or delivery is delayed by virtue of Customer Default then Kellyrac shall be entitled to charge the Customer an abortive delivery fee and/or redelivery costs of the Goods. 6.4 If Kellyrac fails to deliver the Goods, its liability shall be limited to the costs and expenses reasonably incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. 6.5 Kellyrac 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. 6.6 The Customer may reject any Goods delivered to it that do not comply with condition 5.1, provided that: 6.6.1 notice of rejection is given to Kellyrac (a) in the case of a defect that is apparent on normal visual inspection, within 2 days of delivery; (b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent; and 6.6.2 none of the events referred to in condition 7.3 apply. 6.7 If the Customer fails to give notice of rejection in accordance with condition 6.6.1, it shall be deemed to have accepted the Goods. 7. TITLE AND RISK 7.1 The risk in the Goods shall pass to the Customer on completion of delivery. Title to the Goods shall not pass to the Customer until Kellyrac has received payment in full (in cash or cleared funds) for: 7.1.1 the Goods; and 7.1.2 any other goods or services that Kellyrac has supplied to the Customer in respect of which payment has become due. 7.2 Until title to the Goods has passed to the Customer, the Customer shall: 7.2.1 hold the Goods on a fiduciary basis as Kellyrac's bailee; 7.2.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Kellyrac's property; 7.2.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; 7.2.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; 7.2.5 notify Kellyrac immediately if it becomes subject to an insolvency event; and 7.2.6 give Kellyrac such information relating to the Goods as Kellyrac may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business. 7.3 If before title to the Goods passes to the Customer the Customer becomes subject to an insolvency event, or Kellyrac reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Kellyrac may have, Kellyrac may at any time require the Customer to deliver up the Goods 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. 7.4 The Customer shall ensure that if the Goods are or become affixed to any land or building they shall be capable of being removed without material injury to such land or building and to take all necessary steps to prevent title in the Goods passing to the landlord (if any) of such land or building. The Customer undertakes to repair and make good any damage caused by the affixation of the Goods to or their removal from any land or building and shall indemnify Kellyrac against any liability in respect of any damage caused to vehicles or premises in such repossession and removal being damage it was not reasonably practicable to avoid. 8. PRICE AND PAYMENT 8.1 The price of the Goods shall, subject to any variation in accordance with these Conditions, be the price set out in the Order (or as otherwise stated in writing by Kellyrac prior to dispatch), or, if no price is quoted, the price set out in Kellyrac's published price list in force as at the date of delivery. The price of the Goods is exclusive of VAT unless expressly stated to the contrary. 8.2 Kellyrac may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to: 8.2.1 any factor beyond Kellyrac's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); 8.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or 8.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Kellyrac adequate or accurate information or instructions. 8.3 Kellyrac may: 8.3.1 where the Customer is an approved account holder, invoice the Customer for the Goods on or at any time after the completion of delivery and the Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice; 8.3.2 where the Customer is not an approved account holder, require payment in cleared funds in advance of delivery, time of payment is in any event of the essence. 8.4 If the Customer fails to make any payment due to Kellyrac 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 annum above the Central Bank'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. The Customer shall indemnify Kellyrac against any liabilities, costs and expenses (including reasonable legal expenses and court fees) incurred by Kellyrac in pursuit of any overdue payment. 8.5 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding. Kellyrac may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Kellyrac to the Customer. 8.6 Kellyrac reserves the right at any time at its sole discretion to demand security for payments before continuing with any Order or delivery of any Goods. 9. CUSTOMER'S INSOLVENCY OR INCAPACITY 9.1 If the Customer becomes subject to an insolvency event or Kellyrac reasonably believes that the Customer is about to become subject to an insolvency event and notifies the Customer accordingly, then, without limiting any other right or remedy available to Kellyrac, Kellyrac may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Kellyrac without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due. 9.2 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect. 10. LIMITATION OF LIABILITY 10.1 Nothing in these Conditions shall limit or exclude Kellyrac's liability for: 10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); 10.1.2 fraud or fraudulent misrepresentation; 10.1.3 breach of the terms implied by the Sale of Goods Act; 10.1.4 defective products under the Consumer Protection Act; or 10.1.5 any matter in respect of which it would be unlawful for Kellyrac to exclude or restrict liability. 10.2 Subject to condition 10.1: 10.2.1 Kellyrac 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 10.2.2 Kellyrac'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 price of the Goods 11. WEEE REGULATIONS 11.1 Future WEEE Kellyrac sells products either retaining the producer's obligations under the WEEE Regulations or with our Customer taking on those responsibilities. In either case the customer must clearly state which of these options he requires and this must be documented. Kellyrac will confirm this option on its order acceptance. The Customer hereby agrees to disclose this agreement to any subsequent purchaser(s) of the Goods, as required by the WEEE Regulations. 11.2 Historic WEEE The Customer agrees to absolve Kellyrac from its obligations under the WEEE Regulations which require Kellyrac to be responsible for financing the collection, treatment, recovery and environmentally sound disposal of any product supplied before 13th August 2005, where a similar new product is being purchased. Kellyrac will undertake the collection, treatment, recovery and environmentally sound disposal of any product supplied before 13th August 2005 (or outside the scope of the WEEE Regulations) subject to payment of its current disposal fees. 12. PROTECTION OF INTELLECTUAL PROPERTY 12.1 If the trademarks, trade names, know-how, copyrights, design rights, goodwill, patents and all other proprietary rights (the "Intellectual Property") arising out of or existing in or upon the Goods or the documentation referred to in condition 2.3 are the property of Kellyrac (or its suppliers). The Customer shall not cause or permit anything which may damage or endanger Kellyrac's Intellectual Property or Kellyrac's title to it nor assist nor allow others to do so and shall maintain as confidential both during the Contract and at all times thereafter the information relating to Kellyrac and the Intellectual Property. 12.2 The Customer shall notify Kellyrac of any suspected infringement of the Intellectual Property. 12.3 The Customer shall not tamper with any markings or name plates or other indications of the source of origin of the Goods which may be placed by Kellyrac or its suppliers on the Goods. 12.4 Intellectual Property which is the property of Kellyrac is licensed on a non-exclusive basis to the Customer but such license shall automatically be revoked in the event that the Customer suffers an insolvency event apply and in the event that payment is not made in accordance with the Contract. 13. FORCE MAJEURE 13.1 Kellyrac shall not be 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. In such circumstances Kellyrac shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, then either party may terminate the Contract by giving 10 days' written notice to the other party. 14. GENERAL 14.1 Kellyrac may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Kellyrac. 14.2 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 condition, 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. 14.3 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in condition 14.2; 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. 14.4 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. 14.5 A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise 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 the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 14.6 A person who is not a party to the Contract shall not have any rights to enforce its terms. 14.7 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 in writing and signed by Kellyrac. 14.8 The 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 the republic of Ireland. Each party irrevocably agrees that the courts of the Irish Republic 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).
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