Standard Term & Conditions of Sale

 

GENERAL TERMS AND CONDITIONS OF SALE (GTC)

1. OBJECTS

1. These terms and conditions of sale (hereinafter "GTC") govern the sale and supply of all goods and/or services (goods and services herein severally and jointly as "Products") and the assembly and installation of the Products ("Services") by KOMPAN IRELAND LTD (hereinafter "Seller") to the customer ("Customer") and shall apply to any relationship between the Seller and the Customer.

2. A legally binding contract ("Contract") shall not come into force between the Seller and the Customer until the period of FIVE (5) BUSINESS DAYS provided for in clause 2.3 has expired and the Seller has not received a notice of withdrawal/rejection from the Customer. If, within FIVE (5) BUSINESS DAYS as of the date of the Order Confirmation the Seller does not receive a rejection of the Order Confirmation, the Customer shall be deemed to have unconditionally accepted the Order Confirmation and these GTC.

Unless expressly agreed in writing by the Seller, these GTC apply to any relationship between the Seller and the Customer to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or the course of dealing.

3. Any purchase order issued by the Customer to the Seller shall be subject to the present GTC and the Customer accepts the applicability of these GTC to future supplies of Products or Services, even if this is not expressly stated in the further dealings. The Seller may update and/or modify these GTC regularly and, following notice to the Customer of any update or modification, or after sending the Customer the updated or modified GTC, such revised GTC will be applicable to any subsequent business between Seller and Customer.

In case of conflict between the provisions contained in the Order Confirmation and those from the present GTC, the Order Confirmation shall prevail.

2. REQUEST FOR SERVICES

1. Notwithstanding any express indication to the contrary, the Customer is obliged to send the Seller a request for the Services and/or Products (hereinafter, " Order") by ordinary post, fax and/or email.

2. For the purpose of these GTC, the Order must, at least, contain the following information:

      1. personal information and address of the Customer;

      2. Products requested (type and number);

      3. installation services requested;

      4. Indication of the date and place for the provision of the Services.

The Customer expressly acknowledges that the Seller shall only take into consideration Orders which contain the minimum requirements as indicated in this clause 2.2.

3.     Unless expressly stated otherwise in writing, invoices will be issued:

(i)  For Products supplied 100% of the Price upon despatch in the case of supply of Products; and

(ii)   The remaining balance upon completion (hand over) of Services in the case of supply of Services,

the payment of the total value of each invoice shall be made within thirty (30) days starting from the date of the invoice unless expressly agreed otherwise.

In the exceptional case that the Customer does not meet financial criteria set by the Seller, the Seller will be entitled to ask for a partial payment in advance when the Order is accepted (by credit card, money transfer or similar) and the payment of the rest before the Services and/or Products are delivered.

3. Notwithstanding the provisions of clause 2.3 above, the Customer expressly acknowledges the Seller's right to refuse any Order within one (1) month from the Customer's acceptance of the Order Confirmation in accordance with clause 1.2, if the Seller should not receive the approval from the credit institute chosen for the financing of the Order. If the Seller decides not to execute the order pursuant to this clause 3.4, the Customer waives, from now, any and all claims, requests and/or compensation for damages or indemnities from the Seller for the non performance of the Order.

3. RATES - PAYMENTS

1. The prices of the Services and/or Products are those resulting from the Order Confirmation and will correspond to the current prices offered by the Seller (“Prices”).

2. The Order Confirmation will indicate, apart from the Prices, other charges as transport costs, shipping and minimum insurance coverage, to the destination agreed in the same Order Confirmation. Unless expressly stated otherwise in writing, Prices in the Order Confirmation are net of all charges relating to taxes, any increases in these charges, which may come into force after the date of the Order Confirmation shall be borne by the Customer.

3. Unless expressly stated otherwise in writing, invoices will be issue

      1. upon despatch in the case of supply of Products; and

      2. upon completion of Services in the case of supply of Services,

the payment of the total value of each invoice shall be made within thirty (30) days starting from the date of invoice unless expressly agreed otherwise.

In the exceptional case that the Customer does not meet financial criteria set by the Seller, the Seller will be entitled to ask for partial payment in advance when the Order is accepted (by credit card, money transfer or similar) and  the payment of the rest before the Services and/or Products are delivered.

4. For Services to be carried out over a period exceeding two weeks, the Seller reserves the right to invoice the Customer on a weekly basis. An initial invoice will be issued upon receipt of the Products at the Customer's site, followed at weekly intervals by invoices for completed stages of the Services. In the event that any weekly invoice is not paid in accordance with clause 4.2, the Seller shall be entitled at its discretion to suspend the Services until payment of all outstanding sums is received or to terminate the Contract in accordance with clause 14.2(i).

5. Every time the Seller works with a public authority, the Seller shall not provide insurance for the sale and, therefore, the public authority shall pay within 30 days from the date of invoice.

6. In the event of the non-payment by the Customer in accordance with this clause 4 the Customer shall pay the Seller interest at the legal interest rate with effect from the time of due payment, and a penalty equal to 10% of the total bill as compensation for damages, without prejudice to any further damages and any other rights arising from the non-payment.

4. RETENTION OF TITLE

Notwithstanding delivery and the passing of risk in the Products, or any other provision of these GTC, the property in the Products shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of the price of the Products.

5. TRANSFER OF RISK

1. Unless otherwise and specifically agreed in writing, all risks relating to the Products are transferred to the Customer when the same are delivered to the carrier or freight forwarder.

2. Products for which delivery has been suspended pending payment by the Customer, and Products for which delivery has been rejected or not accepted by the Customer without cause, will be retained by the Seller at the risk and expense of the Customer.

6. DELIVERY

1. Unless otherwise expressly agreed, times for delivery are not binding and any delay in delivery does not entail any right to damages and/or compensation for the Customer. In case of delays in delivery, the Customer has the right to cancel orders relating to Products not yet delivered but only after giving Seller a reasonable period of time for the performance and only after sending a formal notice to the Seller to comply; the possible cancellation of orders for Products not yet delivered does not in any way affect the right of Seller to receive payment in full for the Products delivered.

2. Unless expressly stated otherwise in the Order Confirmation, the Seller shall organize the delivery of Products CIP (as defined by Incoterms 2010) to their destination, and the Seller has the right to determine the route and means of transport to be used, as well as choose the shipper and the transporter. The Customer agrees to provide Seller with reasonable time to allow completion of activities necessary for the shipment of the Products, all relevant information and a convenient place for unloading the Products transported. If the carrier is unable to discharge the Products carried, the transport will be charged. Any damage to Products caused during or after unloading by the staff of the Customer will be the exclusive responsibility of Customer.

3. If the Customer fails to collect the Products within 15 days of delivery notice sent to the Customer, the Seller may store them at the cost and risk of the Customer. In such an event, the Seller may, without notice, sell the Products and take action to recover from the Customer any damage the Seller has suffered.

4. The delivery terms are automatically extended if the Customer fails to fulfil contractual obligations on time, especially as regards the timeliness of payments (subject to the right of Seller to terminate the contract) or any of the following circumstances:

      1. Customer does not provide in due time all necessary data on the supply where required by the Seller;

      2. Customer requests product variants and/or service during the execution of the supply;

      3. Force Majeure;

      4. Any other circumstances where the delay is due to the acts or omissions of the Customer, or to facts and circumstances for which the Customer is responsible.

5. If the performance of the obligation of the Seller becomes partially or temporarily impossible (including the case of interruption of production due to employees and/or any other event that prevents or exacerbates the execution) the Seller shall be entitled at its option to delay deliveries or shipments, or reduce the quantities of Products to be delivered or to limit the order of deliveries already made. Under these circumstances the Customer shall not be entitled to request any compensation and/or refuse partial execution and/or refuse extension of the order.

7. INSTALLATION AND ASSEMBLY SERVICE

1. The Services shall be carried out by the Seller in compliance with the terms and conditions established by these GTC and shall relate to the assembly and installation of the Products in the playground as requested by the Customer.

2. In relation to the individual needs expressly indicated by the Customer in the Services Order, the Seller shall install and assemble the Products, the paving, the civil works and any spare parts. In particular, the Customer shall promptly notify the Seller of any existing installations such as water, gas, communications, electricity, or of any other similar communications or installations which may be affected and/or may suffer damages as a consequence of the installation works to be carried out in the place where the Products are to be installed. Should the Customer fail to provide such information prior to the commencement of the Services, the Seller shall not be held liable under any circumstance for any potential or actual damages caused to such installations.

3. The Seller shall be responsible for ensuring:

      1. the correct execution of the necessary work for the installation of the Products;

      2. the correct assembly of the Products; and

      3. compliance of the Services with the laws in force;

8. COMPLETION OF THE SERVICES

1. If the performance of the Services by the Seller becomes impossible whether in full or in part due to Force Majeure, the Seller shall have the right, at its discretion, to delay the performance of the Services or to reduce the quantity of Products to be installed.

 2. Should the Customer claim that the Services have not been performed in accordance with the Order Confirmation, the same shall send the Seller, within five (5) working days from receipt of the Seller's invoice, a notice, specifying in detail, the faults found in the Services. If the Customer objectively demonstrates the claimed faults, the Seller shall remedy the same at its own expense; if, instead, the Seller demonstrates that the Services are in compliance with the Order Confirmation, the Customer shall be obliged to pay the Seller the costs and expenses of the activities carried out to demonstrate the compliance of the Services.

9. LIABILITY

1. In no event shall Seller be liable to Customer or any other person for any special, incidental, indirect, consequential or punitive damages obligation, nor for any loss, costs or expenses, including, without limitation, damages consisting of loss start-up, sales or profits, work stoppage, loss of production, impairment of other assets or otherwise, even if arising out of or in connection with a breach of warranty, breach of contract, false or erroneous statement, or other fault.

Notwithstanding any statement to the contrary containted in these GTC, the Seller's liability for any claim for damages arising out of or in connection with the Products and their use or the Services shall in no case exceed teh amount paid by Customer for the Products or services which are the subject of the claim.

2. The Customer shall be exclusively responsible for the evaluation of the suitability of each Product both in respect of technical specifications and in relation to the necessary requisites and characteristics of each playground or of any other location in which the Products shall be installed, as an example but not limited thereto: the volumetric measurements, ground conditions and/or climatic conditions.

3. The Customer hereby indemnifies and shall keep indemnified the Seller against all loss, liability, damages, costs, claims and expenses arising out of any of the matters set out in clause 9.2.

4. Notwithstanding the case in which the Seller and the Customer sign an agreement for the installation of the Products, the Customer undertakes to indemnify and hold harmless the Seller from any third party right and/or claim relating to the fault and/or non conformity of the Products being installed in the playground and/or any other location

10. CLAIMS – SUBSTITUTIONS – RETURNS

1. The Seller shall not be liable for any claim relating to defects or non-conformity of the Products where such complaint has not been communicated by registered mail to the Seller within 8 (eight) days of delivery of the Products. Moreover, the Customer acknowledges that the Seller shall not be liable for any claims arising in relation to the Products where the Customer has transferred the Products in any form to third parties.

2. Return of any Products must be authorized in writing by the Seller prior to shipping and all costs and expenses will be borne by the Customer.

3. The communication of defects and anomalies must be accompanied by supporting documentation. The Seller shall not be liable for defective Products, when the value of the defect reported by the Customer does not exceed 5% of the value of the Products in respect of any Order Confirmation. In any case, the Customer has the obligation to take any necessary action in order to limit the damage and cannot delay the payment of invoices.

4. If the Seller acknowledges any Products to be defective the Seller is only required, at its discretion, to replace the Products or to refund the price or to reduce the price, if the Customer has not yet paid in the price, or to terminate the contract. The Seller cannot be responsible for damages related to processing costs, production losses, lost profits whether direct or indirect and/or any other direct damage and/or indirect, special loss or damage suffered, by the Customer or any other party.

5. The Customer acknowledges and expressly accepts that the Seller shall not be considered liable for any damages, cost and/or charge borne by the Customer as a result of any breach by the Customer and/or any violation of the law and/or regulation that the same may have established.

6. The guarantee referred to in clause 11 shall not in any way apply to damage arising out of fair wear and tear or, from failures caused by incompetence or negligence of the Customer, misuse or by Force Majeure.

7. In the scope of supply of the Products, if necessary, the Seller reserves the right to provide models other than those requested by the Customer, if these are not available, subject to compliance of the alternative models with the properties listed in the Order Confirmation.

11. GUARNTEES

1. The Seller warrants the Products will be free from defects in design, material and workmanship in accordance with the terms set out in the general warranty attached to the Order Confirmation after Delivery:

2. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the contract.

3. The provisions of clauses 12.1 and 12.2 shall not apply to components which are not manufactured by the Seller, in respect of which, the Seller shall, to the extent it is able, pass on any warranty given to it by the manufacturer of the component in question.

4. The Customer must use and rely only on its own expertise, know-how and discernment. Any advice given by the Seller shall not give rise to additional obligations or liability.

5. The Customer shall indemnify and hold harmless the Seller against all damages, losses, costs, expenses, claims, demands and liabilities arising out of or related to the Products and their use by the Customer and/or use or application by the same of any information disclosed or provided by or on behalf of Seller.

12. TERMINATION

1. A party shall be entitled to terminate this agreement with immediate effect by giving written notice to the other party if:

      1. the other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default not less than [14] days after being notified in writing to make such payment; or

      2. the other party commits a material breach of its obligations under this agreement and (if such breach is remediable) fails to remedy that breach within a period of [30] days after receipt of notice in writing requiring it to do so; or

      3. the other party commits a series of persistent minor breaches which when taken together amount to a material breach; or

      4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 214 of the Insolvency Act 1963; or

      5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or

      6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or

      7. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

      8. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or

      9. a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or

      10.   a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or

      11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(iv) to clause 12.1(x) (inclusive); or

      12. the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business.

2. Termination of this agreement shall not prejudice any of the parties' rights and remedies which have accrued as at termination and all payments which have not yet become due shall become immediately due and payable.

13. INTELLECTUAL AND INDUSTRIAL PROPERTY

1. Each party is obliged not to utilize the brands, names, logotypes, and/or any other distinctive signs of the other party in any way without the prior written consent of the same.

2. Any authorization by one of the parties to use the brands, names, logotypes and/or any other distinctive signs of the other party does not imply any right whatsoever to transfer the property of the same to the party utilizing them.

14. ADMINISTRATIVE PERMISSIONS

The Customer is solely and exclusively responsible for obtaining and maintaining the building authorizations, planning permissions and any other authorizations required for carrying out the supply of the Products or Services and their utilization. Where the Seller is providing Services if agreed, a copy of said authorizations and related and essential attachments, must be forwarded to the Seller before commencement of the Services.

15. FORCE MAJEURE

1. Subject to compliance with the provisions of clause 15.2, a party shall not be deemed to be in breach of the Contract, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder (save for obligations relating to payment of any sums due) to the extent that such delay or non-performance is due to Force Majeure and the time for performance of that obligation shall be extended accordingly.

2. A party whose performance of its obligations under the Contract is delayed or prevented by Force Majeure shall:

      1. forthwith notify the other party of the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure;

      2. use all reasonable endeavours to minimise the effect of the Force Majeure on the performance of its obligations under the Contract; and

      3. forthwith after the cessation of the Force Majeure, notify the other party thereof and resume full performance of its obligations under the Contract.

3. For the purposes of these GTC Force Majeure means any cause materially affecting the performance by a party of its obligations under this agreement arising from any act, events, omissions, happenings or non‑happenings beyond its reasonable control including, without limitation, acts of God, strikes, lock-outs or other industrial disputes, war, riot, fire, flood, or any disaster affecting either one of the parties hereto or a third party for which a substitute third party is not reasonably available.