Terms and Conditions

Terms and Conditions for Tools and Plant Hire
BACKGROUND:
These Terms and Conditions shall apply to the rental of all tools and equipment (“the Equipment”) from
Ninja Abrasives Ltd (“the Company”) by customers who are renting the Equipment for personal or business use.

1.Definitions and Interpretation

1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the
following meanings:

“Customer” means the customer who is renting the Equipment subject to these Terms and Conditions;
“Equipment” means the items hired by the Customer subject to these Terms and Conditions;
“Deposit” means the sum payable by the Customer under Clause 3 of these Terms and Conditions and as set out in the Rental Agreement;
“Premises” means the Company’s premises from which the Customer will collect the Equipment and to which it will return it in accordance with Clause 5;
“Price List” means the Company’s price list, current at the time of the start of the Rental Term;
“Rental” means the rental of the Equipment by the Customer subject to these Terms and Conditions;
“Rental Agreement” means the agreement entered into by the Customer and the Company incorporating these Terms and Conditions which shall govern the Rental of the Equipment; and
“Rental Fees” means the sum payable by the Customer for the Rental as determined under Clause 4 of these Terms and Conditions;
“Rental Term” means the duration of the Rental as set out in the Rental Agreement;
“Damage Cover” means the optional waiver of liability for payment by the Customer for damaged Equipment as set out in clause 8.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to these Terms and Conditions;
1.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule; and
1.2.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.

2. Rental Term

2.1 The agreed Rental Term will be set out in the Rental Agreement.
2.2 If the Customer wishes to extend the Rental Term they may do so at any time prior to the end of the Rental Term. The Customer must contact the Company to arrange such an extension. Extensions may be made for up to 7 days, subject always to the existence of prior reservations made by other customers. The Company shall use its best and reasonable endeavours to satisfy requests for extensions but cannot guarantee the availability of the Equipment to the Customer beyond the end of the pre-existing Rental Term.
2.3 The Company reserves the right to recall the Equipment immediately at any time. In the event that the Company exercises this right the Customer will be reimbursed for any and all days remaining in the Rental Term or will be issued immediately with replacement Equipment of the same type or of the closest type thereto at no additional cost. If the Equipment is not returned to the Company on request the Customer shall be deemed to have authorised the
Company to enter its premises and use any means necessary to recover the Equipment. The Customer shall be charged for any costs associated with such recovery.

3. Deposit

3.1 The Customer shall be required to pay a refundable Deposit to the Company at the commencement of the Rental Term, prior to delivery of the Equipment. The sum of the Deposit shall be set out in the Rental Agreement.
3.2 At the end of the Rental Term the Company shall fully inspect the Equipment upon its return by the Customer. If the Equipment requires cleaning, sharpening and / or maintenance which is the result of normal wear and tear the Customer will receive the Deposit back in full. In the event that additional cleaning, sharpening and / or maintenance is required the Company shall retain the Deposit in full or in part as appropriate and shall provide the reasons for such retention to the Customer in writing, including all relevant calculations and pricing information.

4. Fees and Payment

4.1 The Rental Fees will be determined by reference to the length of the Rental Term, the type and quantity of Equipment, the Price List and any additional items which may be included in the Rental, as set out in the Rental Agreement.
4.2 Payment shall be made in part or in full, as set out in the Rental Agreement, at the commencement of the Rental Term. Payment may be made by cash, credit or debit card.
4.3 All payments to be made in part will take the form of regular weekly payments. The Company will invoice the Customer on a weekly basis. All payments shall be required within 7 days of the date of the relevant invoice.

5. Collection, and Return

5.1 The Customer may collect the Equipment from the Premises at the start of the Rental Term. The Customer may only collect the Equipment once all payments required under Clause 4 have been made and any insurance requirements set out in Clause 8 have been complied with.
5.2 The Company shall use its best and reasonable endeavours to ensure that the Equipment is ready for collection at the start of the Rental Term but shall not be liable for any lack of availability.
5.3 In the event that the Company is unable to provide the Equipment at the start of the Rental the Company will contact the Customer when the Equipment is available for collection. The total Rental Fees payable by the Customer shall be adjusted accordingly to reflect the non-availability of the Equipment.
5.4 At the end of the Rental Term, on the agreed date the Customer shall return the Equipment to the Premises at or before the time shown in the Rental Agreement.
5.5 If the Customer is late in returning the Equipment by more than 1 day the Company shall charge the Customer for an additional day’s rental at the normal daily rate for that Equipment. The Rental Term will be extended by one day. The provisions of this sub-Clause 5.5 shall continue to apply daily until the Equipment is returned.

6. Use and Care of the Equipment

6.1 The Customer may only use the Equipment for the normal purpose for which it is intended.
6.2 All Equipment must be used in accordance with any and all operation and safety instructions or similar documentation provided.
6.3 Certain items of Equipment may require specialist training prior to use. The Customer must ensure that such training is provided to those under its authority that will use the Equipment during the Rental Term.
6.4 The Customer may not make any alterations or adjustments to the Equipment beyond those that are already possible within the range of adjustments specific to a given item.
6.5 The Customer may only affix or connect other items to the Equipment where such affixation does not exceed the design limitations of the Equipment and is not likely to damage it in any way.
6.6 The Customer shall at all times treat the Equipment with a reasonable level of care and shall ensure that it is kept clean, subject always to reasonable levels of wear and tear.
6.7 All Equipment which uses consumables of whatever nature must only be used with official consumables (that is, those produced or recommended by the manufacturer of that particular piece of Equipment) or such other products as authorised by the Company.
6.8 All Equipment which requires fuel or oil must only be used with the types specified by the manufacturer of that particular piece of equipment or such other type as authorised by the Company.
6.9 All electrical equipment must only be used with the voltage specific to that piece of Equipment.

7. Maintenance

7.1 The Company shall maintain the Equipment to the standards specified by the relevant manufacturers. Only official parts (that is, those produced or recommended by the manufacturer of that particular piece of Equipment) shall be used for maintenance and repair work. All Equipment will be fully inspected, cleaned and (where necessary) maintained prior to each Rental.
7.2 The Customer shall not attempt to make any repairs to the Equipment without the prior written consent of the Company. When the Company is contacted in this regard it shall have the option of replacing the Equipment, repairing the Equipment itself or granting the Customer permission to make the necessary repairs. The cost of such replacement or repairs shall be borne by either the Company or the Customer, the responsibility being determined by the reasons for the replacement or repairs.
7.3 If parts require replacement during the Rental Term the Company shall have the option of supplying such parts to the Customer or supplying replacement Equipment or a suitable substitute (that is, Equipment capable of performing the same tasks as that which it replaces).
7.4 Any parts and / or substitutes provided under sub-Clause 7.3 shall be replaced free of charge by the Company provided that such replacement is necessitated by nothing more than normal wear and tear. Additional damage may result in the Customer being charged for the cost of replacement parts, associated labour, and / or the cost of providing substitute Equipment.

8. Insurance

8.1 The Company provides no standard insurance cover for the Equipment. The Customer shall have the following options:
8.1.1 Damage Cover
Subject to clauses 8.1.3, if the Customer contracts to pay the Damage Cover charge being a sum equal to the charge of 15% of the hire Charge (where available as an option) Ninja Abrasives Ltd will waive any further charges for rectifying accidentally damaged Equipment and/or for loss or theft of the Equipment subject to the terms of this clause 8.1.1. If the Customer does not pay the Damage Cover charge or if the Damage Cover does not apply in accordance with clauses 8.1.2 and 8.13 the Customer shall be responsible for the entire cost of rectifying any damage to the Equipment (in accordance with clauses 6, 8 and 9) or for the loss of the Equipment (in accordance with clauses 6,8 and 9) (as applicable). In addition the waiver provided by Damage Cover is subject to the following conditions:
(i) the Customer must be able to demonstrate that reasonable care has been taken to prevent loss;
(ii) theft of Equipment must be reported to the Police and a crime reference number obtained;
(iii) the Customer must notify Ninja Abrasives Ltd within forty eight (48) hours of the theft and obtain a Ninja Abrasives Ltd Theft report Form. The completed form must be returned to:

Claims Department,
Ninja Abrasives Ltd,
Unit 13, Block A,
Redleaf Business Park,
Donabate, Dublin
K36 KC83
Ireland Tel: +353 (0) 19203727
(iv) the maximum value of loss waived for any single Rental Agreement will be five thousand pounds (Euro 5000) and any loss above this value will be charged to the Customer by Ninja Abrasives Ltd
8.1.2 Damage Cover shall not apply and the Customer shall be responsible for any damage to or loss of the Equipment in the following circumstances:
(i) theft of consumable Goods;
(ii) loss due to the dishonesty, wilful defect or negligence of any Customer’s employee, sub-contractor or agent;
(iii) theft from a vehicle where the Equipment was left visible and unattended;
(iv) loss of Equipment revealed only when an inventory is made;
(v) loss arising from civil disturbance; and/or
(vi) loss occurring outside the UK and Eire.
8.1.3 Limitations and Exclusions
Damage Cover does not apply and the Customer shall remain liable for:
(i) the first Euro 50 or 20% of the value of the loss (whichever is the greater amount) of any Equipment loss claim;
(ii) 50% of any claim for theft of Equipment left unattended overnight outside a secure compound or building or stored overnight in a secured vehicle; and
(iii) tyre punctures and / or replacement due to irreparable tyre damage.
8.1.4 Damage Cover shall not operate to waive the Customer’s liability for damage or loss of the Equipment (as applicable) where:
(i) the damage or loss was caused by the Customer’s negligence, damage or breach of Contract including damage or loss of the Customer’s obligations set out in clauses 6, 8 and 9; or
(ii) the damage or loss was caused by or contributed to as a result of the misuse, neglect, alteration, mishandling or unauthorised manipulation of the Equipment.
8.1.5 The Customer acknowledges and agrees that the Damage Cover is not an insurance product for damage to Equipment and Equipment loss or theft.
8.1.6 In the case of smaller items of Equipment the Customer’s existing contents insurance may provide cover while the Equipment is on the insured property. It shall be the Customer’s responsibility to verify this with their insurers. In the case of larger items of equipment, whether covered by the Customer’s existing insurance or otherwise, the Company shall, at its discretion, require proof of insurance prior to releasing the relevant Equipment to the Customer.

9. Liability

9.1 The Company will not be liable for any personal injury or damage to property which results from the improper use of the Equipment.
9.2 The Company will not be liable for any other loss or damage arising out of any circumstances beyond its reasonable control.
9.3 Nothing in these Terms and Conditions restricts the Company’s liability for death or personal injury arising out of any act or omission of the Company.

10. Data Protection

The Company will not share the Customer’s personal data with any third parties for any reasons without the prior consent of the Customer. Such data will only be collected, processed and held in accordance with the Company’s rights and obligations arising under the provisions and principles of the Data Protection Act 1998.

11. Termination
11.1 Where the Customer is an individual, the Company shall be entitled to terminate the Rental Agreement in the event that:
11.1.1 the Customer is in breach of these Terms and Conditions;
11.1.2 the Customer has had their personal belongings confiscated in order to satisfy debts; or
11.1.3 the Customer has a receiving order made against them.
11.2 Where the Customer is a company, the Company shall be entitled to terminate the Rental Agreement in the event that:
11.2.1 the Customer is in breach of these Terms and Conditions;
11.2.2 the Customer goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.
11.3 In the event of termination for any of the above reasons:
11.3.1 all payments required under the Rental Agreement shall become due and immediately payable; and
11.3.2 the Company shall have the immediate right to request the immediate return of the Equipment or repossess the Equipment and may charge the Customer for any reasonable costs involved in such repossession.

12. No Waiver

No failure by either the Company or the Customer to enforce the performance of any provision in these Terms and Conditions shall constitute a waiver of the right to subsequently enforce that provision or any other provision of these Terms and Conditions. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

13. Severance

If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.

14. Law and Jurisdiction

14.1 These Terms and Conditions shall be governed by the English Law.
14.2 Any dispute between the Parties relating to these Terms and Conditions shall fall within the jurisdiction of the English Courts.

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Terms and Conditions for Sale, Delivery and Payments

1.  GENERAL

These terms and conditions shall be incorporated into and form part of every contract for the sale by Ninja Abrasives Ltd, (hereinafter called the “Seller”) of any materials, machines, other goods, or services (hereinafter called the “Goods”) which shall be the subject of the contract between the Seller and the persons, company, corporation or other organisation (hereinafter called the “Buyer”) purchasing the goods.

Unless otherwise agreed formally in writing, the Seller subject to these Terms and Conditions accepts all orders of Sale which override any other terms and conditions stipulated or incorporated or referred to by the Buyer, whether in the order, or in any negotiations, so that these Terms and Conditions of Sale are the only terms and conditions upon which the Seller sells or supplies the Goods.

These Terms and Conditions of Sale shall supersede any previous terms and conditions, contract, agreement, or any other arrangements made or existing between the Seller and the Buyer.

2.  SEPARABILITY

Each order placed by the Buyer or each consignment where an order calls for consignments at different dates shall be treated as a separate contract. If there shall at any time be more than one contract in the course of performance between the Seller and the Buyer, any claim which may arise in respect of any one contract or the terms upon which it may be settled, shall not (subject to Condition 4, Payment) affect in any way the performance of the other contracts nor shall the Buyer be entitled to exercise any right of set-off or counter claim other than in respect of the contract under which the original claim arose.

3.  SALE and ORDER

(a)    Every order will be delivered within 14 days . Delay in delivery must be reported by the Seller. Any loss caused by delay in delivery of order will not hold the Seller liable.

(b)    If Buyer receives the damaged or non acceptable items so it must be reported by only email within 24 hours after delivery. Any damage will not be accepted if it is not reported in time.

4.  PRICE

(a)    The price stated by the seller is the net price of the Goods, after deducting any agreed discounts, and will include the Sellers standard returnable packaging but excludes VAT, import duties, currency and other taxes and duties which, if applicable, shall be paid by the Buyer in addition.

(b)    In respect of goods manufactured to order there shall be a minimum order value of Euro 100.00 and orders valued at less than this amount will be invoiced at Euro 100.00 plus VAT etc (see 3(a)).

(c)    For specific stocked Goods (not manufactured to order) the Seller may accept and ship any order below the minimum order value of Euro 100.00 and the minimum order value shall be adjusted to Euro 15.00 in respect of pre-paid Goods and Euro 35.00 in respect of Goods supplied on credit.

(d)  Unless otherwise agreed all orders will be subject to a delivery and packaging charge of Euro 10.50 minimum per delivery address.

Delivery will be standard 3day service for all goods unless otherwise agreed in writing between the buyer and seller and any additional costs for special delivery (next day, same day etc.,) will be borne by the buyer.

(e)    Certificates of Conformity, if required, will be charged at Euro 12.50 each unless otherwise agreed.

(f)    The Seller may at any time prior to delivery increase the price of the Goods by notice to the Buyer. In such an event the Buyer may on receipt of such notice, cancel the order for the Goods, but if delivery of the Goods is to be made by instalments the Buyer shall be entitled to cancel, in writing, only the undelivered portion of the order. No other remedy shall be available to the Buyer in respect of such variation in price. If the Buyer shall not make any such cancellation the increased price shall apply to the contract as regards all deliveries made since the increase was notified to the Buyer.

(g)   On all orders to be delivered to an address in or outside of Republic of Ireland, irrespective of value, delivery will be on an ex-works basis and the Buyer will be responsible for any specialised packaging, insurance, forwarding and carriage costs to the Seller of obtaining any necessary export licence or the cost to the Buyer of obtaining any necessary import licence unless any other agreement is made and accepted in writing prior to delivery.

(h)   Subject to Condition 2 (Separability) a discount on standard quantity price-breaks may be offered by the Seller to the Buyer in return for a contract for a dedicated amount of material to be called off/delivered in specific quantities over the contract period. If the quantity of goods called off by the Buyer exceeds the contracted call-off quantity on any occasion and reaches the next reduced price break of the Seller’s current price schedule, then an appropriate retrospective price reduction will be given in respect of that delivery only. If the quantity of the goods called of by the Buyer is less than the contracted call-off quantity and reaches the next increased price break of the Seller’s current price schedule then a retrospective price increase will be made for that delivery only.

5.  PAYMENT

(a)   Unless otherwise agreed and confirmed in writing prior to delivery, payment of the goods shall be made not later than THIRTY days following the date of invoice. Notwithstanding the above the Seller may at any time require the Buyer to make payments in advance of delivery or to advance adequate security for the payment of all amounts due or to become due under the contract.

(b)    Payment by cheque or other negotiable instruments is ineffective until it is honored and the sellers’ bank account is credited with the amount due.

(c)    If the Buyer fails to make payment by the due date or when required, the Seller may (without prejudice to any other remedy which it may have) cancel the contract and/or any other contract between the Seller and the Buyer and/ or suspend all deliveries until payment is made.

(d)    Where payment is made by installments the failure of the Buyer to pay any installment shall entitle the Seller to treat such failure as a repudiation of the whole contract by the Buyer and to recover damages for such breach of contract.

(e)    All buyers are required to pay their invoices within 45 days. After 45 days, Seller has a full right to cancel discount given to the Buyer on outstanding invoices and issue an additional invoice for discount given on outstanding invoices.

(f)    Any expense incurred due to outstanding invoices issued by the Seller will also be paid by the Buyer such as legal charges, admin charges etc.

6.  DELIVERY AND DESPATCH

Unless otherwise agreed in writing between the Seller and the Buyer the following provisions shall apply:

(a) Property at Risk

Upon delivery, the Goods shall be at the Buyer’s risk but the property in any Goods shall not pass to the

Buyer until such time as payment for all Goods, debts and other obligations owed by the Buyer to the Seller have been made in full. Delivery of Goods shall be deemed to be affected:

(i)   When the Seller undertakes delivery of the Goods, when the Goods pass over the bounding rail of the Seller’s or Seller’s Agent’s ship, lorry, carriage or other transport at the station, port or address specified by the Buyer

(ii)    Where the Buyer undertakes delivery of the Goods, when the Goods pass over the bounding rail of the Buyer’s Agents ship, lorry, carriage or other transport at the address of the Seller or at some other address as notified by the Seller to the Buyer in writing prior to delivery.

(iii)    Where the Buyer undertakes delivery of the Goods and fails to collect within 14 days after the Seller has given the Buyer written notice that the Goods are ready for delivery and collection.

(b) Date of Delivery

All delivery dates are estimated only. The Seller will take ail responsible steps to deliver the Goods on the date stated but shall not be liable for failure to deliver by such dates or for any damage, loss, consequential loss, or expenses arising directly or indirectly out of delay in delivery or non-delivery, nor shall the Buyer be entitled to refuse to accept the Goods because of late delivery.

(c) Tender and Deliveries

If the Buyer fails to require delivery of the Goods when delivery falls due or refuses to accept delivery, the Seller shall be deemed to have tendered and the Buyer to have refused to accept such delivery and to have repudiated the contract.

(d) Despatch

The method of transport of the Goods shall be at the sole discretion of the Seller. The Buyer at his expense shall provide all necessary unloading facilities at the time the Seller has made delivery.

(e) Packaging

The Seller may vary the type of packaging of the Goods and the quantities of the Goods in each package without affecting the price per unit, weight, area or volume of the Goods. Non-returnable packaging containers and residue shall be disposed of by the Buyer in accordance with Health & Safety and waste disposal regulations in force at the date of disposal.

Returnable packaging remains the property of the Seller at all times and, in the absence of any agreed collection procedures, must be returned by the Buyer at its own cost, in good condition, to the Seller’s work within three months of delivery, failing which the Buyer must pay for it at the Seller’s current rate for loss or damaged packaging.

7.  SHORTAGES/DAMAGES/LOST IN TRANSIT

(a) In respect of Goods manufactured to order, i.e. not held as stock items, the Seller may deliver against any such order in excess of deficiency up to 5 per cent of weight or volume (or 10 per cent in the case of bulk liquid Goods) without any liability to the Buyer save that the price shall be adjusted accordingly.

(b) The Buyer shall inspect the Goods immediately upon delivery and shall immediately give notice in writing to the Seller of any circumstance by reason whereof it alleges that the Goods are not in accordance with the contract. The Seller will not accept any delivery book or note marked “not examined” for the purposes of sub-paragraph.

(c) If the Buyer shall fail to give such proper notice as is required hereunder then the Goods shall be deemed in all respects to be in accordance with the contract and the Buyer shall be deemed to have accepted the Goods.

(d) The Goods in respect of which the Buyer makes any claim hereunder shall be preserved intact, as delivered, for a period of twenty one days from negotiation of the claim with which time the Seller or its agents shall have the right to attend at the Buyer’s premises to investigate the complaint. Any breach of this condition shall disentitle the Buyer to any allowance in respect of this claim.

(e) Goods represented by the Buyer to be defective or not conforming to the contract shall, if authorised by the Seller, be returned, and in the Seller’s absolute discretion shall either be replaced or credited. The Buyer shall not be entitled, where the Goods are to be delivered by instalments, to cancel any undelivered balance order without the prior written consent of the Seller.

8.  SPECIFICATIONS

(a)    The Seller warrants that the Goods are of merchantable quality and, unless otherwise agreed in writing, are produced at the tolerance specified in the Sellers official specifications in respect thereof. Save as aforesaid, all other conditions, guarantees or warranties, whether expressed or implied by statute, common law, or otherwise including (but without prejudice to the generality of the foregoing) conditions, guarantees or warranties as to quality, fitness for purpose or description of the Goods or their life or wear or use under any conditions whether known to the Seller or not or hereby excluded.

(b)  Whilst all reasonable care is taken to ensure the accuracy of any information, data, specifications, advice or recommendations, furnished either verbally or in writing to the Buyer, as to the use, application, performance characteristics, toxicity, general handling or mode of storing, such information, data or recommendations shall not (subject as provided in paragraph 7(a) above) be deemed to form part of the contract for the sale of the Goods and the Buyer shall at the time the contract is deemed to have carried out its own investigation and assessment and any tests necessary to establish the suitability of the Goods for the Buyer’s intended application, methods and requirements.

(c)   The Sellers liability for any and all loss or damage resulting to the Buyer from defective Goods (including any Goods supplied in error) or from any other cause whatsoever shall be limited to the purchase price of the Goods in respect of or in relation to which such loss or damage is claimed unless the Seller shall have replaced such defective Goods with Goods conforming in all respects to the contract in which event the Seller shall be under no further liability to the Buyer. Subject as aforesaid the Seller shall be under no liability in contract or in tort for any injuries, losses, expenses or damage direct or indirect and in particular but without prejudice to the generality of the foregoing, any consequential loss, in each case arising out of or consequent upon or attributable to the contract for the sale of the Goods or the supply or use of the Goods (including any Goods supplied in error) and/ or any containers and/or packages, or the Buyer or any third party having made use of or adopted in whole or in part any information or date or advice given by or on behalf of the Seller in relation to the Goods or their use.

(d)   The foregoing paragraphs 7(a) to 7(d) inclusive shall apply save that if any Act of Parliament or other statutory provisions for the time being in force shall avoid or make unenforceable any of the provisions thereof such paragraphs shall be deemed to apply with the exclusion of those provisions thereof which shall be void or unenforceable as aforesaid.

9.  CANCELLATION OR SUSPENSION ORDERS

Subject as herein provided, orders for Goods may not be cancelled or suspended without the Sellers written consent. Any such cancellation or suspension of an order is acceptable only on the express condition that the Seller shall be indemnified against any loss incurred wholly or in part by the cancellation or suspension.

10.  DEFAULT

If the Buyer shall commit any breach of these Conditions or if any distress or execution shall be levied upon any of the property or assets of the Buyer or if the Buyer shall, in the sole option of the Seller, fail to pay the Seller for the Goods or suspend payment of its debts or make any arrangements with its creditors, or being a company have a Receiver appointed over any of its assets, or pass any resolution to be wound-up, or have any winding-up petition presented against it, or being a person have any bankruptcy petition presented against him/her, then and in any such event the Seller shall, without prejudice to any other rights and remedies it might have and without any liability whatsoever, be at liberty forthwith by notice in writing to the Buyer:

(a)   to cancel all orders and contracts or any part thereof remaining unfulfilled between the Seller and the Buyer for the delivery of Goods.

(b)    either for its agents or itself to enter the premises where the Goods are, or are thought to be, without any liability for any resulting damage in gaining entry (against the consequences of which the Buyer shall indemnify the Seller), for the protection, removal, realisation and disposal of the Goods at any time and from time to time in which the property shall not have passed from the Seller to the Buyer in accordance with these General Terms and Conditions of Sale.

11. TITLE

(a)    Notwithstanding that credit may have been given to the Buyer under the Contract, the Seller shall retain ownership of the Goods or any of them until payment has been received from the Buyer in full. Pending the passing of the Title the Buyer shall hold the Goods as the Seller’s bailee in a fiduciary capacity and shall keep the Goods in good condition and mark them in such a manner that they may be readily identified as the Seller’s property. The Goods may be re-sold by the Buyer in the ordinary course of business as the Seller’s agent. The fiduciary relationship shall continue in respect of the proceeds of sale and must first be used to discharge any outstanding indebted ness to the Seller in priority to any other claim. The Buyer shall also assign to the Seller at the Seller’s request any unpaid debts arising from such sales to third parties where property in the Goods has not passed prior to the sale. The Seller shall pursue such debts and thereafter return to the Buyer any monies recovered in excess of sums owing after deducting its reasonable costs and expenses in pursuing the claim.

(b)   If the Buyer makes new objects from the Goods and mixes the result with other objects or if the Goods in any way become constituents of any other objects then the Seller will retain ownership of such objects where property of the Goods has not passed to the Buyer. To this end the Buyer agrees that ownership of the Goods whether finished or not is retained by the Seller, notwithstanding conversion into new or mixed objects, but to the extent that such new or mixed objects contain constituent parts provided by the Seller. The Buyer shall assign to the Seller at the Seller’s request any unpaid debts arising from sales of the new or mixed objects to third parties where property in the Goods has not passed to the Buyer prior to the sale.

(c)   Clause 10(a) and 10(b) hereunder stand separately and any disputes involving one shall not affect the other, nor shall they affect any other clause within these Terms and Conditions.

(d)  Tools, Dies and Patterns, where part cost has been quoted included in the price of the article or otherwise, remain the property of the Seller unless otherwise agreed in writing by the Seller. Such tools, dies or patterns will be preserved by the Seller for a reasonable time in anticipation of further orders but without liability whatsoever on the part of the Seller.

12. SUB-CONTRACTOR

The Seller shall be entitled to sub-contract all or any of its obligations out of any quotation or order made in consequence thereof.

13. INDEMNITY

The Buyer shall indemnify the Seller in respect of all damage or injury occurring to any person, firm, company, corporation or property and against all actions, suits, claims, and demands, charges or expenses in connection therewith for which the Seller may become liable in respect of the Goods sold under the contract in the event that the damage or injury shall have been occasioned otherwise than by the negligence of the Seller.

14. FORCE MAJEURE

Whilst the Seller intends to use all reasonable endeavours to perform each contract promptly, the Seller may terminate, cancel, rescind and/or suspend for any period, and/or reduce the quantities to be supplied under, any contract without liability for resulting loss, injury or damage if the performance of its obligations under the contract is in any way adversely affected by any act or default on the part of the Buyer or any third party, Act of God, war, riot, civil commotion, strike, lock­out, sit-in, industrial or trade dispute, fire, flood, adverse weather, disease, accident, legal or regulatory obligation, plant breakdown, or shortage of any material, labour, electricity or other supply, or any other cause whatsoever which the Seller could not reasonably have been expected to prevent. The Seller shall not be required to purchase supplies to make good deficiencies arising as aforesaid and the possibility of making such purchases shall not be taken into account in determining whether such delay, hindrance or prevention has occurred.

15. PATENTS, TRADE MARKS, INSTRUCTION, WARNINGS

(a)   No representation, warranty or indemnity is given by the Seller that the Goods do not infringe any letters, patent, trade marks, registered designs, copyright or other industrial rights and in this respect the Buyer shall accept such title to the Goods as the Seller has. If the Buyer uses the Goods in such a manner as to infringe any such third party rights the Seller shall not be responsible for such infringement, and the Buyer will indemnify the Seller from and against all liability arising there from.

(b)  The Buyer shall not, without the Seller’s prior written consent, allow any trade or service mark of the Seller, or any instruction or warning applied to the Goods, to be obliterated or obscured, or use or apply any such mark itself. The Buyer shall strictly comply, and ensure that its employees and agents strictly comply, with all instructions, warnings, labels, data sheets, health and safety information and instructions, waste disposal instructions and other material supplied by the Seller with, or in connection with, the Goods, when supplying the Goods, ensure that they are accompanied by the same; and indemnify the Seller against the consequences of any failure by the Buyer to fully comply with this Condition.

(c)   All know-how, samples and other items relating to the Goods or their development and creation, shall remain the Seller’s property, shall be treated as confidential and shall not be copied, reproduced or disclosed to any person without the Seller’s prior consent.

16. FREE ISSUED MATERIALS

(a)   Whilst the Seller will take all reasonable care to ensure the safe keeping, handling and storage of the Buyers parts or materials, such parts or materials are only accepted for processing on the understanding that no liability will attach to the Seller for any loss or damage suffered to such parts or materials whilst in the possession of the Seller.

(b)   Whilst the Seller will take all reasonable care in re-packaging the free issued material, no responsibility can be accepted by the Seller for any defect in quality or performance of formulated systems not manufactured by the Seller. The technical composition and quality of such systems is beyond the knowledge and control of the Seller and ft shall be the responsibility of the Buyer to pursue any such defects with the original manufacturer of the material and also to indemnify the Seller in respect of any liability arising from the re-packaging, storage, or handling of such materials.

17. ASSIGNMENT

The Contract of which these Conditions from part is personal to the Buyer who shall not assign thereof without the Seller’s written consent.

18. ARBITRATION AND PROPER LAW

(a)   The construction, validity and performance of this contract shall be governed by the Laws of Republic of Ireland. Any disputes arising out of the contract shall be referred to arbitration in Republic of Ireland in accordance with the provision of the Arbitration Act of 1975 or any statutory modifications thereof for the time being in force.
(b)   Export Sales. All contracts shall be construed in accordance with Incoterms 2000 except where they are at variance with these General Terms and Conditions of Sale in which case these terms and conditions shall prevail.