The Seller (as defined below) hereby expressly rejects the applicability of any general conditions of the Customer (as defined below). These General Terms and Conditions of Sale contain conditions limiting or excluding liability
1.1 These General Terms and Conditions of Sale (“Conditions”) govern the offering, sale and delivery of all goods and/or services (the goods and services herein both separately and jointly referred to as: the “Goods”) from or on behalf of ArcRoyal uc (“Seller”) to customer (“Customer”) and apply to all similar dealings between Seller and Customer.
1.2 These Conditions may only be varied or waived by Seller in writing including by e-mail.
1.3 Seller shall be entitled to update and/or amend these Conditions regularly and by and as of the moment of notifying Customer of such update or amendment or by sending Customer the updated or amended Conditions, these revised Conditions shall apply to all dealings between Seller and Customer.
2. Quotations, orders and confirmation
2.1 Unless otherwise specified in writing, quotations, made by Seller in whatever form, are not binding upon Seller and merely constitute an invitation to Customer to place an order. All quotations issued by Seller are revocable and subject to change without notice. Seller is always entitled to refuse an order without indication of its reasons.
2.2 Oral statements and agreements made by Seller’s employees, officers, representatives and/or agents are not binding upon Seller unless and only to the extent that such oral statements are confirmed or made in writing by duly authorized representative(s) of Seller.
2.3 Any samples supplied to Customer are supplied solely for information purposes and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose and Customer shall be deemed to have satisfied itself as to such matters prior to ordering the Goods.
3.1 Prices and currencies of Seller’s Goods are as set out in Seller’s offer or price list. Unless agreed otherwise, Seller’s prices include standard packaging but do not include Value Added Tax or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Goods or the delivery thereof (“Taxes”). If it has been stated in Seller’s written offer that the Goods shall be delivered freight paid, delivery shall be made by Seller’s normal transportation. Any additional expenses that are incurred because the Customer stipulates a particular form of delivery (e.g. express delivery, fast freight, air freight) shall be borne by the Customer and such cost shall be separately charged.
3.2 Unless the prices have been indicated as firm by Seller, Seller is entitled to increase the price of the Goods still to be delivered, if the cost price determining factors have been subject of an increase. Seller shall notify Customer of such increase.
4. Payment and Customer’s credit
4.1 Unless expressly stated otherwise on the invoice, payment shall be made and received by Seller (i) if credit a credit facility has been granted by Seller to Customer in writing, within thirty (30) days; or (ii) if no credit facility has been granted, within seven (7) days following the date of Seller’s invoice for the Goods by means of transfer into the bank account mentioned on the invoice. All payments shall be made in full without any deduction on account of any Taxes and free of set-off, counterclaim or any other deduction.
4.2 With regard to payment of the price for Goods, time is of the essence. Seller may, without prejudice to any other rights of Seller, charge interest on any overdue payment per the applicable law based on the Late Payment Directive 2011/7/EU from the due date computed on a daily basis until all amounts outstanding are paid in full.
4.3 Any complaint with respect to the invoice must be notified to Seller within eight (8) days after the date of invoice. Thereafter Customer shall be deemed to have approved the invoice.
5. Delivery and acceptance
5.1 Unless expressly stated otherwise in Seller’s written offer, all deliveries of goods shall be Ex Works Seller’s production facility, as the term Ex Works shall have the meaning assigned to same in the latest version of INCOTERMS published by the International Chamber of Commerce at Paris, France.
5.2 Any times or dates for delivery by Seller are estimates and shall not be of the essence. Seller is entitled to deliver the Goods in parts and to invoice separately. In no event shall Seller be liable for any kind of indirect or consequential damages caused by any delay in delivery. Delay in delivery of any Goods shall not relieve Customer of its obligation to accept delivery thereof.
6. Cancellation of an Order
6.1 Customer’s wrongful non-acceptance or rejection of Goods or cancellation or repudiation of an order shall entitle Seller to recover all cost and damages caused by such action.
7. Examination and conformity to specifications
7.1 On delivery and during the handling, storage and use of the Goods (the “Use”), Customer shall examine the Goods and satisfy itself that the Goods delivered meet all contractual requirements.
7.2 Complaints about the Goods discovered upon delivery inspection must be put on the consignment note, shall be made in writing including details of the complaint and must reach Seller not later than five (5) days from the date of delivery in respect of any defect, default or shortage which would be apparent from a reasonable inspection on delivery, and five (5) days from the date on which any other claim was or ought to have been apparent, but in no event later than six (6) months from the date of delivery of the Goods. Use or processing of the Goods shall be deemed to be an unconditional acceptance of the Goods and a waiver of all claims in respect of the Goods.
7.3 Goods that Seller consents or directs in writing to be returned shall be returned to Seller, to the destination directed by Seller.
7.4 Defects in parts of the Goods do not entitle Customer to reject the entire delivery of the Goods.
8. Transfer of risk and property
8.1 The risk of the Goods shall pass to Customer on delivery,
8.2 The ownership of the Goods shall not pass to Customer and full legal and beneficial ownership of the Goods shall remain with Seller unless and until Seller has received payment in full for the Goods, including all secondary costs such as interest, charges and expenses which the Seller is entitled to charge in accordance with these Conditions.
8.3 As long as title to the Goods remains with Seller pursuant to this paragraph 8, Customer is entitled to use the Goods solely to the extent required in its ordinary course of business, and, to the extent possible, shall:
(i) hold the Goods as the Seller’s bailee;
(ii) notify Seller immediately of any claims by third parties which may affect the Goods;
(iii) adequately store, protect and insure the Goods; and
(iv) not be entitled to pledge or in any way charge by way of security or create any encumbrance upon the Goods.
9. Limited warranty
9.1 Seller solely warrants that on the date of delivery (i) the Goods shall conform to the description and quantity stated in Seller’s written offer or invoice; and (ii) be of sound material and workmanship If and to the extent Goods fail to meet such warranty and except as provided for in paragraph 10.2 and 10.3 Seller may at its own option within a reasonable time either repair or replace the Goods at no charge to Customer, or issue a credit for any such Goods in the amount of the original invoice price, provided reasonable notice has been provided in accordance with paragraph 7 of these Conditions.
9.2 The foregoing warranty is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for any purpose, or absence of infringement of any claim in any intellectual property right covering the Goods.
10. Limitation of liability
10.1 Under no circumstances shall Seller be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profits, work stoppage, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise. Notwithstanding anything herein contained to the contrary (other than paragraph 10.4), the liability of Seller for any and all claims for direct damages arising out of or in connection with the Goods and the Use thereof shall under no circumstances exceed the sum of Customer’s payments for the Goods that are the subject of the claim.
10.2 The Seller shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, wilful damage, negligence, improper transport (unless if such transport was arranged by the Seller), storage, handling or processing of the Goods supplied, failure to follow the Seller’s or the manufacturer’s instructions, misuse or alteration or repair without the Seller’s written approval.
10.3 The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer.
10.4 Nothing in these Conditions shall serve to limit the Seller’s liability in respect of death or personal injury caused by its negligence or for fraudulent misrepresentation.
11. Force majeure
11.1 Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws, statutes, ordinances, regulations, legislative measures, acts of governments or other administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods supplied by suppliers or subcontractors (“Force Majeure”).
11.2 Upon the occurrence of any event of Force Majeure, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than two (2) months after the agreed delivery date, either Party is entitled to cancel the affected part of the contract without any liability to the other Party.
12. Information, indemnity
12.1 The Customer will determine the suitability of the Goods for their intended use and will not rely upon any representations made by or on behalf of the Seller.
12.2 Customer must utilise and solely rely on its own expertise, know-how and judgement in relation to the Goods and Customer’s Use thereof and in Customer’s application of any information obtained from the Seller for the purposes intended by Customer. Customer shall indemnify and hold Seller harmless from and against any and all damage, losses, costs, expenses, claims, demands and liabilities arising out of or in connection with the Goods or Customer’s Use thereof.
13. Compliance with laws and standards
13.1 Seller makes no promise or representation that the Goods shall conform to any law, statute, ordinance, regulation, code or standard (“Laws and Standards”). Customer acknowledges that the Use of the Goods may be subject to requirements or limitations under Laws and Standards. Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended Use of the Goods; and (ii) obtaining all necessary approvals, permits or clearances for such Use.
14. Independent contractors
14.1 Seller and Customer are independent contractors, and the relationship created hereby shall not be deemed to be that of principal or agent.
15.1 Neither party may assign any of the rights or obligations under the contract between Seller and Customer in relation to the Goods without the prior written consent of the other party, provided however, that Seller may assign such rights and obligations, wholly or partly, to any of its parent companies, subsidiaries or affiliates or to a third party acquiring all or a substantial part of Seller’s assets or business relating to the Goods.
16. Suspension and termination
16.1 If (a) Customer is in default of performance of its obligations towards Seller, or (b) if Seller has reasonable doubts with respect to Customer’s performance of its obligations to Seller and Customer fails to provide to Seller adequate assurance (such as by means of ongoing credit approval) of Customer’s performance before the date of scheduled delivery and in any case within thirty (30) days of Seller’s demand for such assurance; or (c) Customer becomes insolvent or unable to pay its debts as they mature, or goes into liquidation (otherwise than for the purposes of a reconstruction or amalgamation) or any bankruptcy proceeding shall be instituted by or against Customer or if a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Customer or if Customer enters into a deed of arrangement or makes any assignment for the benefit of its creditors, then, without prejudice to any other rights of Seller, in each case Seller may by notice in writing forthwith
(i) demand re-delivery and take repossession of any delivered Goods which have not been paid for, for which purpose Customer hereby grants an irrevocable right and licence to Seller to enter upon all or any of the premises where the Goods are or may be located and all costs relating to the recovery of the Goods shall be for the account of Customer; and/or
(ii) suspend its performance or terminate an order for outstanding delivery of Goods unless Customer makes such payment for Goods on a cash in advance basis or provides adequate assurance of such payment for Goods to Seller; without any intervention of courts being required and without liability for Seller of whatsoever kind arising out of or in connection with such suspension or termination.
16.2 In any such event of (i) and/or (ii), all outstanding claims of and payments to Seller shall become due and payable instantly in proportion to the quantity of Goods delivered to Customer and not re-possessed by Seller.
17.1 Failure by Seller to enforce at any time any provision of these Conditions shall not be construed as a waiver of Seller’s right to act or to enforce any such term or condition and Seller’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by Seller of any breach of Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.
18. Severability and conversion
18.1 In the event that any provision of these Conditions shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever, the validity or enforceability of the remaining provisions between the parties and shall be severed therefrom. The pertaining provisions held to be invalid or unenforceable shall be reformed to provisions satisfying the legal and economic intent of the original provisions to the maximum extent permitted by law.
19. Governing law and jurisdiction
19.1 The parties’ rights and obligations arising out of or in connection with the contract between Seller and Customer in relation to the sale and purchase of Goods and/or these Conditions (and any non-contractual obligations arising out of or in connection with this Agreement) shall be read and construed according to the Laws of Ireland (excluding Northern Ireland), excluding principles of conflict of laws. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
19.2 The parties agree for the benefit of the Seller (and without prejudice to the right of the Seller to take proceedings in relation thereto before any other court of competent jurisdiction) to submit to the non-exclusive jurisdiction of the Courts of law in Ireland (excluding Northern Ireland) to hear any proceedings (including any proceedings relating to non-contractual obligations) in relation to the subject matter of these Conditions.
20. Survival of rights
20.1 The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
21. Intellectual Property
21.1 Seller has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale, delivery and/or Use of the Goods and cannot be held liable for any loss or damages in that respect.
21.2 The sale and delivery of Goods by Seller shall not, by implication or otherwise, convey any license under any intellectual property right relating to the compositions and/or applications of the Goods, and Customer expressly assumes all risks of any intellectual property infringement by reason of its importation or Use of the Goods, whether singly or in combination with other materials or in any processing operation.
21.3 The Seller reserves the right to make any change in the specification of the Goods which are required to conform with any applicable safety or any other statutory requirements or where the Goods are to be supplied to the Customer’s specification which do not materially affect their quality or performance
Only the English version of these Conditions shall be authentic and shall prevail, in case of inconsistency, over any translation of these Conditions in another language.