- These Terms and Conditions constitute the terms and conditions of an agreement (the "Agreement") made between the person / entity named as customer (the "Customer") in the Quotation/Order Forms (the "Order") attached hereto of the one part and eircom Limited in examination (under the Companies (Amendment) Act, 1990) ("eircom") having its registered office at 1 Heuston South Quarter, St. John's Road, Dublin 8 of the other part.
- eircom will only be bound when the Order (whether or not attached) has been signed by eircom and this Agreement shall be operative with effect from that date and the Order shall then constitute an integral part of this Agreement.
- This Agreement including this paragraph shall be governed by and construed in accordance with the laws of Ireland and, unless eircom chooses otherwise, the Courts of Ireland shall have non-exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement.
- The Customer agrees that this Agreement (including the Order) is the complete and exhaustive statement of the agreement between the parties and that it supersedes all prior understandings, agreements, representation or communications, whether written or oral, between the parties relating to the subject matter of this Agreement.
- The "Equipment" means the Equipment described in the Order.
- All references in this Agreement to legislative provisions shall, where the context so admits, be deemed to include reference to any consolidations, amendments or replacements thereof.
- Wherever the context admits, words importing the masculine gender shall include the feminine and neuter genders and word importing the singular number shall include the plural and vice versa.
- The Customer shall at all times comply with the provisions of the general law applicable to the subject matter of this Agreement and, in particular, shall comply with:
- all requirements of eircom and of any relevant public authority as to licenses, consents and authorisations and with the terms of any such licenses, consents and authorisations;
- any directions issued from time to time by eircom and any relevant public authority whether or not in writing, as to the environmental requirement for the location of the Equipment which may be specified in writing and as to use of the Equipment; and
- the requirements of all relevant public utilities.
- In consideration of the performance by eircom of its obligations under this Agreement the Customer hereby undertakes to observe and perform its obligations under this Agreement and, in particular and without prejudice to the generality of the foregoing, where sums are not payable in advance, the Customer undertakes to discharge by the due dates all sums which shall be demanded on accounts rendered to it by eircom. Such accounts shall be computed in accordance with the Order or otherwise as may be endorsed on this Agreement or determined from time to time by eircom and in any court proceedings such accounts and other information relating to the Customer or a relevant transaction (whether or not generated in whole or in part from computer records) shall be sufficient evidence of the sums due, or such other information, by the Customer.
- If the Customer wishes to dispute the amount or basis of any subscription, fee or charge claimed from it by eircom in respect of any service provided by eircom under this Agreement or any other agreement it may do so by notice in writing given to eircom within one (1) month from the date on which the account in respect thereof shall have been first rendered to it by eircom and if it fails to do so within that time it shall not be entitled thereafter to dispute or challenge the amount or basis of such subscription, fee or charge.
- Notwithstanding clause 10 hereof, any sums due to eircom under the terms of this Agreement and remaining unpaid thirty (30) days after the due date shall bear interest at the rate of two (2) per cent above the A rate for overdrafts for the time being charged by AIB Bank plc or such other bank as might be chosen for the purpose by eircom calculated from the due date until the date of payment and a certificate in writing under the hand of a proper officer of the said Bank certifying the amount of interest due in accordance with this provision shall in any proceedings be sufficient evidence as to the contents thereof.
- Whenever under this Agreement any sum of money shall be owing to eircom by the Customer, the same or any part thereof may be deducted from any sum due by eircom to the Customer or held on behalf of the Customer on foot of any other agreement.
- eircom shall have the right to make such enquiries as it shall think fit as to the creditworthiness and the financial standing of the Customer and the Customer hereby consents to the disclosure by third parties to eircom of such information as maybe relevant for that purpose.
- Subject to clause 12.4 hereof, ownership of the Equipment shall pass to the Customer upon delivery or when the full amount due to eircom in respect of the sale and installation of the Equipment has been paid, whichever is the earlier.
- Notwithstanding clause12.3 hereof, the Equipment supplied by eircom under this Agreement shall remain the personal property of eircom and retain its character as such no matter in what manner fixed or attached to any structure until all sums due to eircom in respect of such Equipment and its installation or on foot of any agreement have been paid in full. Until all such sums have been paid in full eircom reserves the right to enter upon any premises where the Equipment is located and take possession of and remove the Equipment if it so elects.
- Without prejudice to any other remedy available to it hereunder or under the general law, eircom shall have the right to suspend the performance of its obligations under this Agreement or any other agreement with the Customer if the Customer should be in breach of any provision of this Agreement or any other agreement with eircom.
- For the purpose of clause 13.1 a "breach" shall include becoming insolvent, the commission of any act of bankruptcy or having a receiving order made against him or making any arrangements or composition with his creditors or, if being a company, it is deemed to be unable to pay its debts within the meaning of Section 214 of the Companies Act, 1963 or otherwise insolvent or if a receiver or examiner or administrator is appointed over all or any part of its assets or undertaking or an order is made or an effective resolution is passed for its winding up (otherwise than in the course of reconstruction or amalgamation of which reasonable notice shall be given to eircom) or a similar procedure takes place in any jurisdiction.
- The Customer shall be responsible for all expenses reasonably incurred by eircom in connection with the enforcement of any remedies under this Agreement.
- All remedies of eircom provided for under the Agreement are cumulative and are in addition to any remedies of eircom under the general law or otherwise and may be exercised concurrently or separately and the exercise of any one remedy shall not be deemed to be an election for such remedy or to preclude the exercise of any other remedy.
- No waiver of any term or condition of this Agreement by either party shall be deemed to be a further or continuing waiver of any other terms or conditions of this Agreement.
- If any of the terms or conditions of this Agreement are held to be void or unenforceable by reason of any law or judicial determination, they shall be void or unenforceable to that extent only and such void or unenforceable terms or conditions shall be severable and all other terms or conditions shall remain valid and fully enforceable.
- eircom shall not be liable to the Customer for any breach of the Agreement or failure on its part to perform any obligation as a result of acts of God; Government control, restrictions or prohibitions; or any other act or omission of any public authority (including Government) whether local national or international; or the act or default of any supplier, agent or other person, or of labour disputes or difficulties (whether or not within eircom or its agents); or any other cause whatsoever (whether or not SUI GENERIS) where such other cause is beyond the reasonable control of eircom.
- eircom will not be liable to the Customer or to any other person for any personal injury, loss or damage or for any indirect, consequential or special loss or damage however or whenever caused by or arising out of the supply to the Customer of the Equipment or the use of the Equipment by the Customer or by any other person.
- Save and insofar as the same are lawfully excluded under this Agreement by virtue of the provisions of Section 55 of the Sale of Goods Act 1893 (as inserted by Section 22 of the Sale of Goods and Supply of Services Act 1980) and of Section 40 of the Sale of Goods and Supply of Services Act 1980, no statement on the Equipment or on any document including the Agreement shall in any way prejudice the contractual rights which the Customer may enjoy while "dealing as a Consumer" within the meaning of the Sale of Goods and Supply of Services Act 1980 or which it may otherwise enjoy under the said Section 55 or Sections 40 and 46 of the 1980 Act.
- The Customer shall indemnify eircom against all liability arising out of third party claims against eircom in respect of personal injury, loss and damage including indirect, consequential or special loss or damage however or when ever caused by or arising out of the supply to the Customer of the Equipment or of its installation or use or of any defect in the Equipment or its installation.
- Notices (which term shall include an account in respect of a subscription, fee or charge claimed from a Customer) shall be deemed to have been rendered by eircom to a Customer at the time when it is left for it at its usual place of residence or business, or, if sent by ordinary post to the Customer at its usual or last known place of residence or business, at the time when it would be delivered in the ordinary course of post.
- For the avoidance of doubt, it is hereby declared that no financial institution, lender or finance house associated with any transaction under the Agreement shall be an agent of eircom other than in accordance with Section 14 of the Sale of Goods and Supply of Services Act, 1980.
- Where appropriate, supply (delivery or handing over) (or installation) will be by such date (the "Supply Date" or "Installation Date") and at such location as may be stated on the Order or agreed between the parties, subject to either party having the option to endeavour to give the other at least twenty four (24) hours notice if it wishes to postpone for a short period the Supply Date or Installation Date in which case a new Supply Date or Installation Date will be arranged. If no such date is arranged then supply or installation of the Equipment will take place as soon as practicable but in any event eircom will not be responsible for any loss suffered by any person arising from the failure of eircom to meet the Supply Date or Installation Date. In particular eircom accepts no liability whatsoever for the consequences, including inability to meet the Supply Date or Installation Date, owing to non-compliance with the environmental conditions for the location of the Equipment by the Customer, or non-availability or inaccessibility of the location for the Equipment; or failure by the Customer to supply the Customer data specified by eircom.
- Delivery or installation may take place at a different premises / location of the Customer if it is reasonably proximate and convenient for the parties.
- The Customer shall facilitate eircom where necessary for the foregoing purposes including as to environmental conditions for the location of the Equipment specified in writing by eircom and as to power supply.
- On completion of delivery and/or installation the Customer shall sign a service acceptance form which shall be sufficient evidence that the Equipment has been delivered and/or installed in accordance with this Agreement.
- Without prejudice to the generality of any clause herein, eircom reserves the right to apply and recover charges payable by the Customer, on a quantum meruit basis, in respect of works done and materials used, prior to any cancellation of the Agreement by Customer.
- All risk in the Equipment shall pass to the Customer on handing over or upon delivery to or installation (whichever is the earlier) at the location specified on the Order but where further installation is to be performed by eircom then so much only of the risk as relates to such installation shall remain with eircom until the completion of such installation.
- In relation to the Sale of Goods;
WHERE THE CUSTOMER "DEALS AS A CONSUMER" WITHIN THE MEANING OF THE SALE OF GOODS AND SUPPLY OF SERVICES ACT 1980, THIS CLAUSE (OTHER THAN CLAUSE 24 DOES NOT APPLY TO THE BREACH BY EIRCOM OF ANY TERM IMPLIED BY STATUTE AS TO CORRESPONDENCE OF THE EQUIPMENT WITH DESCRIPTION OR SAMPLE OR AS TO ITS QUALITY OR FITNESS FOR PURPOSE.
- SAVE AS SPECIFIED IN THIS AGREEMENT, ANY WARRANTIES, TERMS AND CONDITIONS INCLUDING (BUT NOT LIMITED TO) THOSE RELATING TO QUALITY OR FITNESS FOR PURPOSE OR ANY PARTICULAR PURPOSE OF THE EQUIPMENT OR REASONABLE SKILL AND CARE IN DELIVERY (IF APPLICABLE) ARE EXCLUDED. THE CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE OPERATION OF THE EQUIPMENT AND WILL TAKE EVERY PRECAUTION TO ENSURE THAT THE EQUIPMENT WILL BE USED AND KEPT SAFELY AND KEPT IN APPROPRIATE ENVIRONMENTAL CONDITIONS IN ACCORDANCE WITH ANY INSTRUCTIONS CONVEYED FROM TIME TO TIME BY EIRCOM OR ANY OTHER INTERESTED PERSON FOR THIS PURPOSE.
- eircom does not exclude liability for:
- death or personal injury resulting from its negligence;
- breach of contract provided such liability does not exceed fifty (50)% of the Full Cash Purchase Price of the Equipment set out on the Order or €100,000 (one hundred thousand euro) whichever sum is the lesser.
- Subject to clause 24 eircom will not be liable to the Customer for any direct loss or damage or injury, whether foreseeable or not, and whether or not arising by negligence or breach of contract however or wherever arising out of the supply and installation of the Equipment, save for a sum not exceeding twenty( 20)% of the Full Cash Purchase Price on the Order or the sum of €25,000 (twenty five thousand euro) whichever is the lesser, where the said loss, damage or injury was caused by a deliberate or negligent act or omission of eircom, provided however that the Customer:
- notifies any claim promptly to eircom; and
- keeps and uses the Equipment in accordance with any direction issued from time to time by eircom or any other interested party.
- Subject to clause 24, eircom will not be liable for any indirect, consequential or special loss or damage, whether foreseeable or not, and whether or not arising by negligence or breach of contract, however or wherever caused by or arising out of the supply to the Customer of the Equipment or of its installation or of its maintenance or of the use of such Equipment by the Customer or any other person and in particular, but without prejudice to the generality of the foregoing, eircom shall not be liable for financial loss, loss of profits, loss of business or contracts or business opportunity whether by the Customer or any other person.
- Subject to clause 24 which shall not in any way be limited by this clause 27, the liability of eircom, whether under this Agreement or not, shall not under any circumstances exceed a sum equal to twenty (20)% of the Full Cash Purchase Price of the Equipment as stated on the Order or the sum of €20,000 (twenty thousand euro) whichever is the lesser, provided, however that the Customer
- notifies any claim promptly to eircom; and
- keeps and uses the Equipment in accordance with any direction issued from time to time by eircom or any other interested party.
- In relation to the provision of Services;
- ALL CONDITIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY, CONTRACTUAL OR OTHERWISE RELATING TO THE PROVISION OF ANY SERVICES UNDER THIS AGREEMENT ARE HEREBYEXCLUDED.
- THE PROVISIONS OF SECTION 39 OF THE SALE OF GOODS AND SUPPLY OF SERVICES ACT 1980 ARE HEREBY EXCLUDED FROM THE TERMS OF THIS AGREEMENT.
- EIRCOM SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE IN TORT, BREACH OF CONTRACT OR OTHERWISE, FOR ANY LOSS OR DAMAGE OF WHATEVER KIND, WHETHER DIRECT OR CONSEQUENTIAL, FOR ANY LOSS SUFFERED BY THE CUSTOMER OR ANY OTHER PERSON ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT OR OTHER ACT OR OMISSION BY EIRCOM IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE AGREEMENT ( OTHER THAN THE SUPPLY OF PARTS OR UNITS OF THE EQUIPMENT).
- THIS CLAUSE 28 SHALL NOT APPLY TO A CUSTOMER TO WHOM CLAUSE 29 APPLIES.
- the Customer "deals as Consumer" (within the meaning of the Sale of Goods and Supply of Services Act 1980); or
- the Customer does not "deal as a Consumer" (within the meaning of the Sale of Goods and Supply of Services Act 1980) and (to the extent that) Equipment or parts thereof are supplied under this Agreement; eircom shall not be liable for any loss, whether direct or consequential, suffered by the Consumer in connection with the performance by eircom of its obligations under this Agreement in the event of clause 29.1 or, in the event of clause 29.2 in connection with such supply, save in each event where loss results directly from the deliberate or negligent act or omission of eircom provided, however, that in no circumstances will the total liability of eircom to the Customer exceed:
- a multiple of five of the Installation Charges (as set out on the Order); or
- the sum of €20,000 (twenty thousand euro); whichever is the lesser.
- Notwithstanding the provisions of clauses 22, 28 and 29 above, the Customer shall at all times be obliged to mitigate any losses or damage and in no circumstances will eircom be liable for any loss resulting directly or indirectly from the failure by the Customer to perform any of his obligations under this Agreement.
- For the avoidance of doubt, the Customer, at his own expense, shall be obliged to:
- supply all Customer data specified by eircom and at such time in advance of Supply date or Installation Date as eircom may require; and
- provide a location for the Equipment which fully complies with the environmental conditions specified by eircom in the Order. eircom may refuse to undertake the supply and/or installation of the Equipment if the Customer fails to meet the requirements above and reserves the right to apply a charge payable by the Customer to cover any costs incurred by eircom as a result, including but not limited to the interest charges on the cost price to eircom from the manufacturer of the Equipment, the cost of storage of the Equipment or to seek payment in full in advance of supply and/or installation.