TERMS OF USE

1.           INTERPRETATION

1.1         In these Conditions the following words have the following meanings:-

         Contract:  any contractual arrangement between Acorn and the Customer for the sale of Goods and/or the supply of Services by Acorn to the Customer entered into in accordance with condition 2.2.

         Customer:  the person, firm or company who purchases the Goods and/or Services from Acorn.

         Deliverables:  all documents, products and materials used or developed by Acorn in relation to the Goods and/or Services in any form, including computer programmes, data, reports and specifications.

         Delivery Point:  the premises of Acorn at Glasslyn Road, Bandon, County Cork, Ireland or such other place where delivery of the Goods is to take place as requested by the Customer and agreed to by Acorn in accordance with condition 4.1 (“Alternative Delivery Point”).

         Goods:  the goods to be supplied by Acorn to the Customer under the Contract (including any part or parts of them).

         Input Material:  all documents, information and materials provided by the Customer relating to the Goods and/or Services, including computer programmes, data, reports and specifications.

         Intellectual Property Rights:  all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, 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:  a request by the Customer made in a form acceptable to Acorn to purchase Goods and/or Services from Acorn, including an official written purchase order referencing Acorn’s invoice number.

         Services:  the services to be provided by Acorn to the Customer under the Contract.

         Specific Terms:  the specific terms and conditions (if any) communicated by Acorn to the Customer in respect of any particular sale or supply of Goods and/or Services.

1.2         In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory  provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

1.3         In these Conditions, references to the masculine include the feminine and the neuter and references to the singular include the plural and vice versa as the context admits or requires.

1.4         Headings will not affect the construction of these Conditions.

2.           APPLICATION OF CONDITIONS

2.1         Subject to any variation under condition 2.4, these Conditions shall:-

(a)          apply to and be incorporated into the Contract; and

(b)          prevail over any inconsistent terms or conditions contained, or referred to, in any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document or implied by any law, trade custom, practice or course of dealing.

2.2         The Order constitutes an offer by the Customer to purchase the Goods and/or Services described in it subject to the Specific Terms and these Conditions.  No offer placed by the Customer shall be accepted by Acorn other than:-

(a)          by a written acknowledgement issued and executed by or on behalf of Acorn (including by way of email); or

(b)          (if earlier) by Acorn delivering the Goods or starting to provide the Services,

when a contract for the sale and/or supply and purchase of those Goods and/or Services on the Specific Terms and these Conditions will be established.  The Customer’s standard terms and conditions (if any) attached to or enclosed with or referred to in any communication from the Customer shall not govern the Contract.

2.3         Subject to any variation under condition 2.4 the Contract will be subject to the Specific Terms (if any) and these Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).  Where there is any inconsistency between the Specific Terms and these Conditions, the Specific Terms shall apply.

2.4         These Conditions apply to all Acorn’s sales and supplies and any variation to these Conditions and any representations about the Goods and/or Services shall have no affect unless expressly agreed in writing and signed by a director of Acorn.

2.5         Quotations, if given by Acorn, are given on the basis that no Contract shall come into existence except in accordance with condition 2.2.  Any quotation is valid for a period of 30 days from its date, provided that Acorn has not previously withdrawn it.

3.           DESCRIPTION OF GOODS

3.1         The description, specification and quantity of the Goods shall be as set out in Acorn’s acknowledgement of the Order, whether by way of an Invoice, Order confirmation or otherwise.  All samples, drawings, descriptive matter, specifications and advertising issued by Acorn and any descriptions or illustrations contained in Acorn’s brochures or catalogues are issued or published for the sole purpose of giving an approximate idea of the Goods described in them.  They will not form part of this Contract and a sale of Goods shall not be a sale by sample.

4.           DELIVERY/NON-DELIVERY OF GOODS

4.1         Unless otherwise agreed in writing by Acorn, delivery of the Goods shall take place at the Delivery Point where the Goods will be collected by the Customer.  If specifically requested by the Customer and agreed to in writing by Acorn, Acorn shall make arrangements for delivery of the Goods to the Alternative Delivery Point as soon as practicable and shall advise the Customer of the approximate date of delivery.

4.2         Any dates specified by Acorn for delivery of the Goods to the Alternative Delivery Point are intended to be an estimate and time for delivery shall not be made of the essence by notice.  If no dates are so specified delivery will be within a reasonable time.

4.3         Subject to the other provisions of these Conditions, Acorn will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Acorn’s negligence), nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 60 days.

4.4         If for any reason the Customer will not accept delivery of any of the Goods when they are delivered to the Delivery Point or the Alternative Delivery Point (whichever applies), or Acorn is unable to deliver the Goods because the Customer has not provided appropriate instructions, details, documents, licences, authorisations, facilities or manpower:-

(a)          risk in the Goods will pass to the Customer (including for loss or damage caused by Acorn’s negligence);

(b)          the Goods will be deemed to have been delivered; and

(c)          Acorn may store the Goods until the Customer takes delivery whereupon the Customer will be liable for all related costs and expenses (including, without limitation, storage and insurance).

4.5         The Customer will, if required by Acorn, provide at its expense at the Delivery Point or Alternative Delivery Point (whichever applies) adequate and appropriate equipment and manual labour for unloading the Goods.

4.6         The details of the Goods as recorded by Acorn upon dispatch from Acorn’s place of business shall be conclusive evidence of the Goods received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

4.7         Acorn shall not be liable for any non-delivery of Goods (even if caused by Acorn’s negligence) unless written notice is given to Acorn within 21 days of the date when the Goods would in the ordinary course of events have been received.

4.8         Any liability of Acorn for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or refunding the Customer the price paid for the Goods.

5.           RISK/TITLE

5.1         Subject to condition 4.4, the Goods are at the risk of Customer from the time of delivery.

5.2         Ownership of the Goods shall not pass to the Customer until Acorn has received in full (in cash or cleared funds) all sums due to it in respect of:-

(a)   the Goods; and

(b)   all other sums (if any) which are or which become due to Acorn from the Customer on any account.

5.3         Until ownership of the Goods has passed to the Customer, the Customer must:

(a)          hold the Goods on a fiduciary basis as Acorn’s bailee;

(b)          store the Goods (at no cost to Acorn) separately from all other Goods of the Customer or any third party in such a way that they remain identifiable as Acorn’s property;

(c)          not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;

(d)          maintain the Goods in satisfactory condition and keep them insured on Acorn’s behalf for their full price against all risks to the reasonable satisfaction of Acorn.  On request the Customer shall produce the policy of insurance to Acorn.

5.4         The Customer’s right to possession of the Goods shall terminate immediately if:-

(a)   any of the circumstances described in condition 12.1(b) occurs; or

(b)   the Customer suffers or allows any execution whether legal or equitable to be levied on its property or fails to observe/perform any of its obligations under the Contract or any other contract between Acorn and the Customer or is unable to pay its debts or ceases to trade; or

(c)   the Customer encumbers or in any way charges any of the Goods.

5.5         Acorn shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods is not passed from Acorn.

5.6         The Customer grants Acorn its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them or, where the Customer’s right to possession is terminated, to recover them.

5.7         Upon termination of the Contract howsoever caused Acorn’s (but not the Customer’s) rights contained in this condition 5 will remain in effect.

6.           QUALITY

6.1         Where Acorn is not the manufacturer of the Goods, Acorn will endeavour to (but shall be under no obligation to) transfer to the Customer the benefit of any warranty or guarantee given to Acorn.

6.2         Acorn warrants that, (subject to the other provisions of these Conditions) upon delivery and for the period of twelve months from the date of delivery, the Goods will be:-

(a)   of satisfactory quality within the meaning of the Sale of Goods and Supply of Services Act 1980; and

(b)   be reasonably fit for their purpose.

6.3         Acorn shall not be liable for a breach of the warranties in condition 6.2 unless:

(a)   the Customer gives written notice of the defect to Acorn and if the defect is as a result of damage in transit, to the carrier within fourteen days of the time when the Customer discovers or ought to have discovered the defect; and

(b)   Acorn is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by Acorn) returns such Goods to Acorn’s place of business, at Acorn’s cost, for the examination to take place there.

6.4         Acorn shall not be liable for a breach of the warranties in condition 6.2 if:-

(a)          the Customer makes any further use of such Goods after giving such notice; or

(b)          the defect arises because the Customer failed to follow Acorn’s oral or written instructions (whether contained in the material safety data sheet or any handbook or similar document given to the Customer by Acorn or otherwise) as to the storage, installation, commissioning use or maintenance of the Goods; or

(c)          the Goods are unsuitable or ineffective because the Customer has failed to provide sufficient or accurate information in relation to the proposed use or installation of the Goods; or

(d)          the Customer alters or repairs the Goods without the written consent of Acorn.

6.5         Subject to Conditions 6.3 and 6.4, if any of the Goods do not conform with any of the warranties in condition 6.2 Acorn shall, at its option, repair or replace such Goods (or the defective part) or refund the price of such Goods provided that if Acorn so requests the Customer shall, at Acorn’s expense, return the Goods or the part of such Goods which is defective to Acorn.

6.6         If Acorn complies with condition 6.5 it shall have no further liability for a breach of the warranties in condition 6.2 in respect of such Goods.

6.7         Any Goods replaced will belong to Acorn and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the twelve month period.

7.           ACORN’S OBLIGATIONS

7.1         Acorn shall use reasonable endeavours to provide the Services to the Customer in accordance, in all material respects, with the Contract.

7.2         Acorn shall use reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence of the Contract in this respect.

7.3         Acorn shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises and that have been communicated to it under condition 8.1(e), provided that it shall not be liable under the Contract if, as a result of such observance, it is in breach of any of its obligations under the Contract.

8.           CUSTOMER’S OBLIGATIONS

8.1         The Customer shall:-

(a)          co-operate with Acorn in all matters relating to the Goods and/or Services;

(b)          ensure that the terms of the Order and any relevant and/or applicable specifications and details are complete and accurate;

(c)          where required to enable Acorn to supply the Goods and/or Services, provide for Acorn, its agents, subcontractors and employees, in a timely manner and at no charge, access to the Customer’s premises, lands, data and other facilities as requested by Acorn;

(d)          provide, in a timely manner, such Input Material and other information as Acorn may request and ensure that it is accurate in all material respects;

(e)          inform Acorn or its agents, subcontractors and agents of all health and safety rules and regulations and security requirements that are applicable at the Customer’s premises;

(f)           obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Goods and/or Services, in all cases before the date on which the Goods are to be delivered or Services are to start.

8.2         If Acorn’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors or employees, Acorn shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

8.3         The Customer shall be liable to pay to Acorn, on demand, all reasonable costs, charges or losses sustained or incurred by Acorn (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Acorn confirming such costs, charges and losses to the Customer in writing.

9.           CHARGES AND PAYMENT

9.1         Unless otherwise agreed by Acorn in writing, the price for the Goods and/or Services shall be the price set out in Acorn’s price list, receipt, invoice or acknowledgement of Order and shall be exclusive of any VAT (unless stated otherwise).

9.2         Payment of the price:

(a)   for the Goods, is due upon the Customer making the Order and prior to delivery of the Goods; and

(b)   for the Services, is due by way of agreed deposit prior to commencement of the Services and the balance within 30 days of the date of invoice.

9.3         No payment shall be deemed to have been received until Acorn has received cleared funds.

9.4         All payments payable to Acorn under the Contract shall become due immediately upon termination of this Contract despite any other provisions.

9.5         The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.

9.6         Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Acorn any sum due pursuant to the Contract, Acorn may:-

(a)   charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of AIB Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement; and/or

(b)   suspend the supply of all Goods and/or Services until payment has been made in full.

10.         LIMITATION OF LIABILITY *THE CUSTOMER SHOULD TAKE PARTICULAR NOTICE OF THIS CLAUSE*

10.1      Subject to Conditions 4 and 6, the following provisions set out the entire financial liability of Acorn (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a)   any breach of the Contract;

(b)   any use made or resale by the Customer of any of the Goods and/or Services or of any product incorporating any of the Goods; and

(c)   any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

10.2      All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law excluded from the Contract.

10.3      Nothing in these Conditions excludes or limits the liability of Acorn:

(a)   for death or personal injury caused by Acorn’s negligence;

(b)   for any damage or liability incurred as a result of fraud or fraudulent misrepresentation by Acorn; or

(c)   for any liability incurred by the Customer as a result of any breach by Acorn of the Sale of Goods and Supply of Services Act 1980.

10.4      Subject to Conditions 6.2 and 6.3:-

(a)   Acorn’s total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Contract shall be limited to the price paid for the Goods and/or Services;

(b)   Acorn shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise in each case whether direct, indirect or consequential or any claims for consequential compensation whatsoever (howsoever caused) which arises out of or in connection with the Contract.

11.         INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY

11.1  As between the Customer and Acorn, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by Acorn.

11.2  The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, data or initiatives which are of a confidential nature and have been disclosed to the Customer by Acorn, its employees, agents or sub-contractors and any other confidential information concerning Acorn’s business or its products which the Customer may obtain.  The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to Acorn and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

12.         TERMINATION

12.1  Without prejudice to any other rights or remedies which Acorn may have, Acorn may terminate the Contract without liability to the Customer immediately on giving notice to the Customer if:-

(a)          the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach; or

(b)          the Customer has a bankruptcy order made against it or makes an arrangement or composition with its creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or, if the Customer is a body corporate, convenes a meeting of  creditors or enters into liquidation except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation or has a receiver and/or manager appointed of its undertakings or any part thereof or has an examiner appointed or a resolution is passed or petition presented to any court for the winding up of the Customer or any steps are taken or proceedings commenced relating to the insolvency or possible insolvency of the Customer or the Customer takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

12.2  On termination of the Contract for any reason:-

(a)          the Customer shall immediately pay to Acorn all of Acorn’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, Acorn may submit an invoice which shall be payable immediately on receipt;

(b)          the Customer shall, forthwith return all of Acorn’s Deliverables.  If the Customer fails to do so, then Acorn may enter the Customer’s premises and take possession of them.  Until they have been returned or repossessed, the Customer shall be solely responsible for their safekeeping; and

(c)          the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

13.         ASSIGNMENT

13.1  The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Acorn.

13.2  Acorn may assign the Contract or any part of it to any person, firm or company.

14.         FORCE MAJEURE

14.1      Acorn shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that if the event in question continues for a continuous period in excess of ninety days the Customer shall be entitled to give notice in writing to Acorn to terminate the Contract.

15.         GENERAL

15.1  No variation of the Contract, or these Conditions, or of any of the documents referred to in them, shall be valid unless it is in writing and signed by or on behalf of each of the parties.

15.2  The Customer acknowledges and agrees that, in entering into the Contract, it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.

15.3  Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

15.4  Each right or remedy of Acorn under the Contract is without prejudice to any other right or remedy of Acorn whether under the Contract or not.

15.5  If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

15.6  Failure or delay by Acorn in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

15.7  Any waiver by Acorn of any breach of or any default under any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

15.8  The formation existence construction performance validity and all aspects of the Contract shall be governed by Irish law and the parties submit to the exclusive jurisdiction of the Irish courts.

15.9  The Customer acknowledges and agrees that details of its name, address and payment record may be submitted to a credit reference agency and personal data may be processed by and on behalf of Acorn.

16.         COMMUNICATIONS

16.1  All communications between the parties about the Contract must be in writing and delivered by hand or sent by pre-paid first class post, facsimile transmission or electronic mail:

(a)   (in the case of communications to Acorn) to its registered office or such changed address as may be notified to the Customer by Acorn; or

(b)   (in the case of the communications to the Customer) to the registered office of the addressee (if it is a Company) or (in any other case) to any address of the Customer set out in any document which forms part of this Contract or such other address as shall be notified to Acorn by the Customer.

16.2  Communication shall be deemed to have been received:

(a)   if sent by pre-paid first class post two days, or ten days if sent by airmail, (excluding Saturdays, Sundays and public holidays) after posting (exclusive of the day of posting);

(b)   if delivered by hand on the day of delivery;

(c)   if sent by facsimile transmission on a working day prior to 5:00pm at the time of transmission and otherwise in the next working day;

(d)   if sent by electronic mail upon confirmation of receipt by the receiver.

16.3  Communications addressed to Acorn shall be marked for the attention of the Executive Director.