Inver Designs DAC: The Company (“The Company”)
Registered Office: Avoca River House, North Quay, Arklow, Co. Wicklow, Y14 V277, Registered in Ireland No 473183.
Terms & Conditions of Sale:
- Interpretation
1.1 The following definitions, unless the context requires otherwise, and rules of interpretation in Condition 1 shall apply in these Conditions: “Account” means the credit account (if any) provided to the Customer by the Company.
“Additional Terms” means any terms varying or adding to the Conditions that are included within the Order Acknowledgement or otherwise agreed in writing by the Company, including any agreed variations to the Order; “Customer” means the person, company or organisation that enters into a Contract, in accordance with and subject to these Conditions, to purchase the Products from the Company for business purposes.
“Conditions” means the terms and conditions of sale set out in this document (as amended from time to time); “Contract” means a legally binding contract formed pursuant to Condition 2 (consisting of an the Company accepted Order, Order Acknowledgement, the Conditions and any Additional Terms) between the Parties for the purchase of the Products; “Data Laws” means unless and until the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) is no longer directly applicable in Ireland or the UK, the GDPR and any national implementing laws, regulations and secondary legislation, including the Data Protection Act 2018 as amended or updated from time to time, in Ireland or the UK and any successor legislation to the GDPR or the Data Protection Act 2018;
“Delivery Address” is defined in Condition 4.1.
“Estimate” means the Company’s quotation for the supply of the Products.
“Estimated Delivery Date” means the date on which the Company estimates that the Products will be delivered, as detailed in the Contract.
“Intellectual Property Rights” means subject to any territorial or other limitations. all copyright and related rights, trademarks, trade names, domain names, and any other relevant intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that may now or in the future subsist in any part of the world;
“Order” means a request (written or oral) to purchase products from the Customer to the Company or acceptance by the Customer of an Estimate provided by the Company.
“Order Acknowledgement” means acceptance of an Order by the Company, which shall be the earlier of the Company accepting the Order in writing or commencing performance of the Order.
“Parties” means the Company and the Customer.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; “Products” means the goods which the Company is to supply to the Customer in accordance with these Conditions under a Contract;
“Specification” means the Company’s specification, or a specification agreed by the Parties in writing, for the design and/or materials of the Products.
1.2 Headings are for ease of reference and do not form part of or affect the interpretation of the Contract.
1.3 Any reference to the masculine shall include the feminine and the neuter, any reference to the singular shall include the plural and, in each case, vice versa.
1.4 Any reference in these Conditions to any provision of to a statute or statutory provision is a reference to that statute or statutory provision as it is in force for the time being, and includes reference to any amendment, extension, application, or re-enactment and includes any subordinate legislation made under it.
- Basis of Sale
2.1 Subject to Condition 2.2, these Conditions and any Additional Terms shall apply to all Contracts to the exclusion of all other terms and conditions. No terms or conditions of the Customer (whether endorsed on, delivered with, or contained in the Customer’s purchase order or other documents) shall form part of any Contract. Any attempt by the Customer to exclude, vary or limit any Conditions or Additional Terms without the express agreement of the Company in writing shall be void.
2.2 Save as set out in Condition 2.3, no variation to these Conditions shall be binding, nor form part of the Contract, unless it is an Additional Term or agreed to in writing and signed by authorised representatives on behalf of each of the Parties.
2.3 The Company shall be entitled to vary or amend these Conditions at any time upon providing notice by publication of the varied or amended Conditions upon its publicly accessible website or by written notice, any Order will be subject to the then prevailing Conditions applicable at the date of the Order Acknowledgement.
2.4 The Company may provide the Customer with an oral or written Estimate. An Estimate so provided is an invitation to treat by the Company to supply the products set out in the Estimate, subject to the Conditions, to the Customer. Unless stated otherwise in the Estimate, an Estimate is valid for 30 days from its date provided that the Company has not previously withdrawn it.
2.5 The placing of an Order by the Customer shall be deemed to be an offer, subject to the Conditions, to purchase the products stated therein from the Company, subject to the Conditions. the Company is not obliged to accept an Order and no Order shall be deemed to be accepted by the Company, and no binding Contract shall come into existence, unless and until Order Acknowledgement.
2.6 In entering into the Contract the Customer acknowledges that it does not rely on any representations made by the Company’s employees, agents, or sub-contractors unless such representations are confirmed by the Company in writing. The Customer irrevocably and unconditionally waives any right it may have to claim damages for and/ or to rescind the Contract as a result of any misrepresentation (other than those made fraudulently) whether or not contained in the Contract.
2.7 Any typographical, clerical, or other error or omission in any sales literature, Estimate, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.8 Except as set out at Conditions 7.5 and 7.6, any advice or recommendation given by the Company or its employees, agents or subcontractors to the Customer or its employees, agents, or sub-contractors as to the design, storage, application, or use of the Products, or otherwise is acted upon entirely at the Customer’s own risk and the Company shall not be liable for any such advice or recommendation unless:
2.8.1 Such advice is given or confirmed by the Company in writing.
2.8.2 The Customer purchases from the Company the items in relation to which such advice or recommendation was given; and
2.8.3 The Customer relies upon such advice or recommendation in which case the Company’s liability to the Customer shall be as set out in clause 7 below in relation to its supply of the Products and it shall not separately (except pursuant to Conditions 7.5 and 7.6 below) be liable in respect of such advice or recommendation.
2.9 The Company shall not be liable to the Customer for any advice or recommendation given by any of its subsidiaries, and the Customer accepts that no such company has any liability whatsoever in respect of any advice such company may give or have given to the Customer in relation to the Products.
2.10 The Company Conditions are intended for supply of Products to trade customers and not consumers.
- Description, changes, and cancellation
3.1 The quantity, quality and description of the Products shall be those set out in the Specification and the Contract. The Company reserves the right to make any changes in the Specification that are required to conform to any applicable statutory or EC safety or other requirements or that do not materially affect the quality or performance of the Products.
3.2 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order (including any applicable specification), and for giving the Company any necessary information relating to the Products within a sufficiently reasonable time to enable The Company to perform the Contract in accordance with its terms.
3.3 The Customer acknowledges it is responsible for ascertaining the type, quantity and specification of the products required for its purposes and that, except as expressly agreed otherwise by the Company in writing and subject to these Conditions, the Company provides no warranty (and none shall be implied) that the Products are fit for any particular purpose.
3.4 The Customer acknowledges and accepts that, whilst the Company will use reasonable endeavours to provide Products of a similar quality, Products are supplied on the understanding that the finish of Products containing natural products or materials may vary from sample to sample and product to product, may not be uniform in colour or texture, and that by reason of differences in stock supplied to the Company (and any other reasonable varying conditions occurring) may result in a reasonable variation in colour and quality between the advertised product or any sample and the Products supplied by the Company, and between different batches of Products supplied, and any such variations shall not be a defect for the purposes of Condition 7. Unless agreed otherwise as an Additional Term, no Contract shall be a sale by sample.
3.5 The Customer shall not be entitled to cancel in whole or in part any Contract without the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and material used), damages, charges and expenses incurred by the Company as a result of such cancellation.
3.6 If any process is to be applied to the Products by the Company in accordance with any specifications submitted or requested by the Customer that the Company agree to perform, the Customer shall indemnify the Company against all losses, damages, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by the Company in settlement of, any claim for misuse of any confidential information of any other person or infringement of any Intellectual Property Rights of any other person or any other liability whatsoever that results from the Company’s use of the Customer’s specifications or the marking of the Products or from the sale or supply of such Products by the Company pursuant to the Contract.
4. Delivery
4.1 Delivery of the Products shall take place when the Customer is notified that the Products are available for collection from the Company’s premises or when the Company delivers the Products to the delivery address set out in the Contract (“Delivery Address”) on or around the Estimated Delivery Date. If the Products are to be delivered to the Delivery Address, then the Company reserves the right in its absolute discretion to choose the form of transport for the delivery of the Products and the composition of each load.
4.2 Any dates quoted for delivery are approximate only, the Company shall not be liable for any delay in delivery howsoever caused, and time of delivery shall not be of the essence.
4.3 Unloading of the Products from the delivery vehicle at the Delivery Address (if applicable) shall be the entire responsibility of the Customer and the Customer shall provide unloading facilities and shall unload the Products promptly on their arrival at the Delivery Address. The Company shall be entitled to recover from the Customer all and any costs and expenses incurred as a result of the Customer’s failure to do so.
4.4 The Company shall be entitled to deliver the Products in instalments in which case each instalment shall be treated as an entirely separate contract and any default or breach by the Company in respect of any such instalment shall not entitle the Customer to cancel any other instalment or treat the Contract as a whole as repudiated.
4.5 If the Company at the Customer’s request makes delivery of the Products by instalments and any such instalment does not comprise a full vehicle load then, unless the Contract expressly provides for delivery of part loads, the Company shall be entitled to charge the Customer for the additional transport costs incurred. The Customer shall be deemed to accept the Products on delivery notwithstanding any late delivery by the Company.
4.6 If the Products are damaged on delivery or less than the correct amount of the Products is delivered, then unless the Customer notifies the Company and the carrier (otherwise than by a note on the delivery note) within 3 days of delivery in writing (including relevant details and photos of the Products) no claim against the Company may be made in respect of damage to or short delivery of such Products.
4.7 If the Products have not been delivered despite receipt by the Customer of the invoice from the Company relating to them, then unless the Customer notifies the Company within 7 days after the date of such invoice no claim against the Company may be made in respect of non-delivery of those Products.
4.8 Unless agreed otherwise by the Company in writing, any Products in respect of which a claim is made under Condition 4.6 regarding damage in transit shall be preserved in the same state and condition as delivered for a period of 14 days from notification of the claim by the Customer and within such time the Company, including its agents, and/or the carrier, shall have the right to attend the Customer’s premises or any other premises where the Products are held to inspect the Products and fully investigate the claim or at the Company’s option, the Customer shall return such of the Products as the Company may request for inspection. the Company shall reasonably consider and in its absolute discretion accept or reject any claim.
4.9 The Company’s liability for a claim made pursuant to Conditions 4.6, 4.7 or 4.8, is limited to (at the Company’s option) replacing the Products or issuing a credit note at the pro rata Contract rate for the relevant Products within a reasonable time.
4.10 Unless agreed otherwise by the Company in writing, if delivery of the Products is accepted by the Customer and the Customer fails to notify the Company of any claims in accordance with the Contract, the Customer shall not be entitled to reject the Products and the Company shall have no liability for delivering the wrong quantity of Products or for damage to the Products and the Customer shall be bound to pay the Price and any invoiced sums in respect of the Products and/or Services as if the Products had been made and delivered in accordance with the Contract.
4.11 Any receipt or delivery note (or equivalent documentation) obtained by the Company or provided by its carrier shall be conclusive evidence of delivery of the stated Products in accordance with the Contract by the Company.
4.12 If for any reason the Customer fails to accept delivery of any of the Products within 24 hours of notification that the Products are ready for collection or when the Products are delivered to the Delivery Address, or if the Company is unable to deliver the Products because the Customer has not provided appropriate instructions, access, documents or authorisations then, without prejudice to any other right or remedy available to the Company:
4.12.1 The Products will be deemed to have been delivered and the Company shall be entitled to issue its invoice in respect of the Products; and
4.12.2 The Company may store the Products until actual delivery or sale or disposal in accordance with Condition whereupon the Customer shall be liable on demand in writing for all related costs and expenses of sale or disposal (including, transport, storage and insurance costs).
4.13 If the Customer has not taken/accepted delivery of the Products within 10 days of attempted delivery in accordance with Conditions, the Company shall be entitled to sell or supply the Products (whether or not such Products were manufactured or marked by the Company pursuant to Condition 3.6) to a third party in any country at the best price readily obtainable and (after deducting all storage and selling expenses) and account to the Customer for any balance or, if such a sale is not reasonably possible, to dispose of the Products.
And in any of the above cases the Company shall be entitled to charge interest (both before and after any judgment) on the price payable for the Products under the Contract at 4% over the ECB base rate from the Estimated Delivery Date to the date of actual delivery.
5. Price and Payment
5.1 The price of the Products shall be the price set out in the Estimate and Contract or, if not so specified and no price has been quoted in writing (or a price quoted in writing is no longer valid), the price listed in the Company’s published price list current at the date of the Contract. All prices quoted in writing are valid for 30 days only or until earlier acceptance by the Customer, after which time they may be altered by the Company without giving notice to the Customer.
5.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to the Company arising due to any factor beyond its control, any change in delivery dates or quantities of the Products or in the Specification requested by the Customer, or any delay caused by any instructions of the Customer, or the Customer’s failure to give the Company adequate information or instructions.
5.3 The price is exclusive of any applicable value added tax, which the Customer shall be liable to pay to the Company at the prevailing rate in addition to the Contract price.
5.4 The Company shall be entitled to issue an invoice for the Contract price any time prior to, on, or at any time after actual or deemed delivery. Payment shall be made by the Customer on or before the due date, notwithstanding the fact that delivery may not have taken place and/or title in the Products may not have passed to the Customer. Receipts for payment shall only be issued if requested in writing by the Customer. Any query or dispute in relation to an invoice must be submitted by the Customer in writing, with appropriate details, within 7 days of the invoice date.
5.5 For Account Customers within their credit limit each invoice submitted by the Company shall, unless other Account payment terms have been agreed in writing by the Company, be paid on or before the last day of the month next following the month in which the invoice is issued by the Company. For Customers without an Account, or with an Account that has reached its credit limit, the Price shall be paid at the time of the Order or on receipt of the Company’ invoice, as directed by the Company.
5.6 The Company reserves the right, in its absolute discretion, to cancel the Account at any time.
5.7 The Company reserves the right to suspend the Account if the credit limit is reached, or it decides, for whatever reason, that it requires security from the Customer, other than that already provided (if any), for the performance and discharge of the Customer’s obligations under any Contract or for any other reason it considers reasonable. The Customer agrees to use its best endeavours to ensure that any additional security required by the Company (including, but not limited to, a third party providing a guarantee) is provided. The Company may decide to reinstate the Account if the Customer provides the security required or meets any other conditions required to be satisfied by the Company.
5.8 If the Company exercises its right to cancel or suspend the Account, in accordance with Conditions 6.6 and/or 6.7 respectively, all sums owed to the Company by the Customer at the date of cancellation or suspension shall be immediately due and payable, unless agreed otherwise by the Company, and the Company may continue trading with the Customer on the basis set out in Condition 6.5 for Customers without an Account.
5.9 No payment shall be deemed to have been received until the Company has received cash or cleared funds and all sums payable to the Company under a Contract shall become due immediately on its termination, however arising. All payments shall be made to the Company as indicated in the Order Acknowledgement and/or invoice (the latter of which shall prevail) issued by the Company.
5.10 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 unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
5.11 All payments shall be applied to invoices and to Products listed in such invoice in the sequence determined in its discretion by the Company. Receipts for payment shall only be issued on request.
5.12 Time of payment of the price pursuant to this Condition 6 shall be of the essence in respect of all payments due under the Contract.
5.13 If full payment of any amount payable to it under the Contract is not received by the Company by the due date, then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
5.13.1 Sue for the entire amount due.
5.13.2 Charge interest (both before and after any judgment) at the rate of 8% over the ECB base rate on the outstanding balance until such time as full payment is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.13.3 Require the immediate return to the Company of all Products agreed to be sold by the Company to the Customer in which the property has not passed to the Customer in accordance with the provisions of clause 8 below and the Customer hereby agrees to reimburse to the Company upon demand the Company’s costs or expenses in recovering such Products.
5.13.4 Appropriate any payment made by the Customer under any other contract with the Company to pay for any outstanding amounts the Company may, in its sole discretion, think fit.
5.13.5 Cancel the Contract, suspend any further deliveries to the Customer and/or suspend the performance of any other contract between the Parties or any subsidiary or holding company of the Customer.
6. Warranty and Liability
6.1 Subject as expressly provided in these Conditions, and except where the Products are sold to a person dealing as a consumer, all warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
6.2 Subject as expressly provided in these Conditions and to Condition 7.1 above, the Company does not give any warranties, conditions, guarantees or representations as to quality or fitness for a particular purpose of the Products or other warranties, conditions, guarantees or representations whether express or implied, oral or in writing.
6.3 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Products, except as expressly provided in these Conditions.
6.4 Except pursuant to Condition 7.3, no action, regardless of form, arising out of the transactions under the Contract may be brought by the Customer more than two years after the cause of action has accrued.
6.5 The Company warrants that the Products will correspond with the Specification and will be free from defects in material and workmanship for a period of twelve months from the date of delivery PROVIDED THAT:
6.5.1 The Company shall be under no liability in respect of any defects in the Products arising from any drawing, design, specifications, or information supplied by or on behalf of the Customer.
6.5.2 The Company shall be under no liability if the total price for the Products has not been paid by the date of the claim by the Customer.
6.5.3 the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and capable of being passed on to the Customer.
6.5.4 The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, abnormal working conditions, failure to follow the Company’s instructions (whether oral or written), misuse or alteration or repair of the Products without the Company’s approval; and
6.5.5 The Company shall be under no liability and the Customer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract unless: any defect in or failure to meet the Specification by the Products is notified to the Company in writing within 7 days of the date of delivery, or (where the defect or failure was not apparent upon reasonable inspection) as soon as reasonably possible after the Customer discovers such; and
6.6 In the event of any valid claim under Condition 7.5 above being made by the Customer, the Company shall:
6.6.1 At its discretion either provide replacements or pay the reasonable cost of providing replacements up to a maximum of the price paid for those Products that fail to comply with the Contract; and
6.6.2 Reimburse to the Customer its reasonable costs of removing those Products that fail to comply with the Contract and installing replacements up to a maximum of the amount paid to the Company under the Contract.
6.7 If the Company complies with Condition 7.6, it shall have not further liability for a breach of the warranty in Condition 7.5 in respect of such Products. Any Products returned by the Customer pursuant to the provisions of the Contract shall belong to the Company and the provisions of the Contract shall apply to any replacement Products or parts supplied.
6.8 The Company’s reasonable opinion as to the cause of the defect, failure or breach of warranty shall be final and binding unless the Customer can provide conclusive evidence to the contrary.
7. Risk and Title
7.1 Risk of loss of or damage to the Products shall pass to the Customer:
7.1.1 In the case of Products to be delivered at the Company’s premises, at the time the Company notifies the Customer that the Products are ready for collection; or
7.1.2 In the case of Products to be delivered otherwise than at the Company’s premises, on delivery of the Products or, if the Customer refuses to accept delivery or fails to give adequate delivery instructions before the Estimated Delivery Date, on such refusal or the Estimated Delivery Date (as appropriate); and the Customer shall insure the Products for their full market value against all usual risks from that time. Where Products are delivered in accordance with Condition 8.1.1 and the Company uses the services of a third-party carrier, the Company shall not be liable for any loss or damage to the Products or otherwise caused by such third-party carrier.
7.2 Notwithstanding delivery and the passing of risk in the Products to the Customer, or any other provisions of the
7.2.2 Contract, ownership of and title to the Products shall, subject to Condition 8.3 not pass to the Customer (and shall be retained by the Company) until the Company has received in cash or cleared funds from the Customer:
7.2.1 Payment in full of the price of the Products plus VAT; and
7.2.2 Payment of the price of any other Products supplied to the Customer by the Company at any time whether or not the price has become due; and
7.2.3 All other sums that are due to the Company from the Customer.
7.3 Subject to Condition 8.5, if the Customer resells the Products prior to ownership and title passing in accordance with Condition 8.2, it shall do so in accordance with Condition 8.5 and title to the Products shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
7.4 Until ownership and title in the Products passes to the Customer (as set out in Condition 8.2), the Customer shall:
7.4.1 Store the Products (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property.
7.4.2 Not remove, destroy, deface, or obscure any identifying mark or packaging relating to the Products.
7.4.3 Maintain the Products in satisfactory condition, keep them insured on the Company’s behalf for their full price and/or market value (whichever is the higher) against all risks from the date delivery and provide the Company with a copy of the insurance policy on request.
7.4.4 Notify the Company immediately if any of the events listed in Condition 8.6 occur.
7.4.5 Give the Company such information relating to the Products as the Company may require from time to time; and
7.4.6 Deliver up the Products to the Company on demand.
7.5 The Customer may only resell the Products before ownership and title have passed if such a sale is a sale of The Company’s property on the Customer’s own behalf as principal (not as the Company’s agent), made in the Customer’s ordinary course of business and at the market value.
7.6 The Customer’s right to possess, resell or use the Products in the ordinary course of its business shall end immediately if it:
7.6.1 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 (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager or administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer
or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer, or the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
7.6.2 The Customer suspends, ceases, or threatens to cease to carry on all or substantially the whole of its business or the Customer suffers or allows any execution, sequestration, or such other process to be levied on its property or obtained against it or encumbers or in any way charges any of the Products; or
7.6.3 any event occurs, or proceeding is taken, with respect to the Customer, in any jurisdiction to which it is subject that has a similar or equivalent effect to any of the events listed in Conditions 8.6.1 and 8.6.2.
7.7 The Company shall be entitled to recover payment for the Products and any sums due under a Contract notwithstanding the fact that title in any of the Products has not passed from the Company to the Customer.
7.8 The Customer grants the Company, its agents, and employees an irrevocable licence to enter any premises (including vehicular access) where the Products are or may be stored at any time to inspect or, where the Customer’s right to possession has ended in accordance with Condition 8.6, recover them.
7.9 If before title to the Products passes to the Customer any of the events listed in Condition 8.6 occur or the Company reasonably believes any such event is about to occur and notifies the Customer accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy of the Company, the Company may at any time require the Customer to deliver up the Products or use its rights in Condition 8.8.
7.10 If the Company repossesses any Products or the Customer delivers up any Products, in accordance with Condition 8, the Contract for those Products shall be deemed to be rescinded.
7.11 For the avoidance of doubt, the Products, all other Products supplied to the Customer by the Company and all Products into which the Products or such other Products have been incorporated that are in the Customer’s possession shall be presumed to belong to the Company unless the Customer can prove otherwise.
7.12 The Customer shall procure that any third party that holds Products shall permit the Company to take possession of them further to the provisions of this Condition 7.6.2 and the Customer shall indemnify the Company against any liability it may incur to such third party in connection with taking or attempting to take possession of them. The Company shall be entitled to use or dispose of such Products as it wishes.
7.13 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any Products that remain the property of the Company, but if the Customer does so, all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
8. Termination
8.1 The Company shall be entitled to terminate the Contract forthwith by notice in writing to the Customer if: the Customer commits an irremediable breach of the Contract, persistently repeats a remediable breach or
8.1.1 Commits any remediable breach and fails to remedy it within 14 days of receipt of notice of the breach requiring remedy of the same; or the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes,
8.1.2 Bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
8.1.3 The Customer ceases, or threatens to cease, to carry on business; or the Customer is resident in a jurisdiction other than England and Wales, if an event similar to any of those specified in Conditions and 9.1.2 occurs to or in relation to the Customer; or
8.1.4 The Company reasonably considers that any of the events specified in Conditions 9.1.1 to 9.1.5 inclusive is about to occur in relation to the Customer and notifies the Customer accordingly.
8.1.5 In the event of termination by the Company pursuant to Condition 9.1 above then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend.
8.2 Any further deliveries under it without any liability to the Customer and, if the Products have already been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
The Customer shall be entitled to terminate the Contract forthwith by notice in writing to the Customer if the Company commits an irremediable breach of the Contract, persistently repeats a remediable breach, or commits any.
8.3 Remediable breach and fails to remedy it within 14 days of receipt of notice of the breach requiring remedy of the same.
9. Indemnity
9.1 The Customer shall be liable, to pay the Company (on demand in writing) for, and indemnify (and keep indemnified) the Company against, all reasonable costs, expenses, charges and losses sustained or incurred by the Company (including any loss of profit, loss of reputation, damage to property, loss of opportunity to deploy resources elsewhere, and legal costs on an indemnity basis) arising directly or indirectly from its fraud, negligence or failure to comply, or unreasonable delay in complying, with any of the Conditions or terms of the Contract.
10. Limitation of Liability
10.1 Subject to the other Conditions, Condition 11 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Customer in respect of any breach of the Contract or loss or claim arising out of the Contract and any representation, statement, tortious act or omission, including negligence, arising under or in connection with the Contract and in respect of any use made (including any alterations or modifications) or resale by the Customer of any of the Products, or any product incorporating the Products.
10.2 Subject to Conditions 11.3 and 11.4:
10.2.1 The Company shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill, loss of data or loss of business opportunity (in each case whether direct, indirect or consequential) or any claims for special, indirect or consequential loss, damages or compensation whatsoever (howsoever caused) which arise under, out of or in connection with the Contract.
10.2.2 The Company’s total liability in contract, tort (including breach of statutory duty or negligence), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of the Contract shall be limited to the Price or £100,000 (whichever is the greater).
10.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.4 Nothing in the Conditions excludes or limits the Company’s liability for death or personal injury caused by the Company’s negligence or for fraud or fraudulent misrepresentation or for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability for.
10.5 These Conditions are intended to govern business-to-business contracts. Nothing in these Conditions is intended to, nor shall they, affect any consumer’s statutory rights.
11. Intellectual Property
11.1 The Company warrants that it owns or is licensed to use the Intellectual Property Rights in the Products, such Intellectual Property Rights may be subject to territorial or use limitations.
11.2 The Intellectual Property Rights in the Products shall remain the property of the Company (or its licensors) and the Intellectual Property Rights in any adapted version of the Company Products shall, as between the Parties, become the exclusive property of the Company unless agreed otherwise in writing by the Company.
11.3 The Company grants the Customer a revocable, non-exclusive royalty free licence of its Intellectual Property Rights in the Products for the sole purpose of its own use or onward sale of the Products by the Customer for the normal use for this type of product, the licence granted shall be revocable at any time and subject to any limitations which may exist in respect of any Intellectual Property Rights, the Customer shall to the extent required by law observe any limitations of the Company’s Intellectual Property Rights and the Company’s reasonable direction as to use. If the Customer wants to use or sell the Products for any other purpose, then it should contact the Company for its consent in writing to do so. The Customer grants the Company a non- exclusive royalty free licence of its Intellectual Property Rights for the sole purpose of performing its obligations under the Contract. The Customer shall promptly notify the Company on receipt of any claim of infringement of any of the Company’s Intellectual Property Rights.
12. Force Majeure
12.1 The Company reserves the right to defer the date of delivery of the Products or cancel the Contract (in each case without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, labour disputes (other than in relation to the Company’s own workforce), or restraints or delays affecting the Company’s or carriers, or inability or delay in obtaining supplies of adequate quality, provided that, if the event in question continues for a continuous period in excess of 60 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
13. Data Protection
13.1 The parties acknowledge that the parties may share limited Personal Data necessary for the Company to assess and administer its Account and relationship with the Customer and in some circumstances to arrange and provide delivery of Products to the Customer or to clients of the Customer, (which may include sharing strictly limited identity and contact Personal Data necessary to perform the Contract), as such each party ordinarily act as separate Data Controllers. Each party will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data for the duration and purposes of the arrangement under these Conditions.
13.2 Each party warrants that they will comply fully with the Data Laws and will not process Personal Data outside of the EEA or UK, without meeting the requirements of the Data Laws. Each Party confirm that they have has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
13.3 Each party shall ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential.
14. General
14.1 The remedies available to the Company under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Customer.
14.2 The failure or delay of the Company to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect its right to enforce or exercise it, nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege. Any waiver by the Company must be made in writing to be effective and binding.
14.3 The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights, which shall be construed as if such invalid or unenforceable term or right did not exist.
14.4 Any notice or written communication required or permitted to be served on or given to either party under the Contract shall be delivered by hand or sent by recorded delivery mail to the other party at such address which it has previously notified to the sending party and shall be deemed to have been given when actually received or, if sent by recorded delivery mail and returned marked “gone away” or to the like effect, on return of such recorded delivery mail.
14.5 The Contract is personal to the Customer and the Customer may not assign, transfer, sub-contract or otherwise part with the Contract or any right or obligation under it without the prior written consent of the Company.
14.6 The Contract contains all the terms agreed by the parties relating to the subject matter of the Contract and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation (unless made fraudulently), undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the Contract except as set out in the Contract. In particular, the Customer acknowledges that it has not been induced to enter into the Contract by any representation or warranty other than those contained or referred to in Condition 7 above.
14.7 In the event of any conflict between the provisions of the Contract and of any other document referred to in it, the provisions of the Contract shall prevail.
14.8 The construction, validity and performances of the Contract is governed by the law of Ireland and the parties accept the exclusive jurisdiction of the Irish Courts. The Customer shall have the right to commence proceedings solely in the Irish Courts, but the Company shall have the right to commence proceedings in the courts of Ireland or of the country in which the Products are delivered or of the country in which the Customer is resident or which otherwise have jurisdiction in accordance with any international convention.
14.9 No person who is not a party to these Conditions shall have any right to enforce any term of these Conditions pursuant to the Contracts (Rights of Third Parties) Act 1999.
ENDS