Landmark Technologies Ltd Terms and Conditions of Sale
1. All orders are accepted and all contracts are made subject to the terms and conditions set
out herein including any special terms agreed between us ("Terms" ) which shall prevail and
be effective notwithstanding any variations or additions contained in any order or other
document submitted by you including without limitation your standard conditions of purchase
and/or any provision contained in your order.
2. Your placing an order with us shall be deemed an offer by you to purchase the goods to be supplied pursuant to these Terms ("Goods") and will not be binding on us until we have given written acceptance of such offer by you.
3. You shall be responsible to us for ensuring the accuracy of the terms of any order submitted by you and for giving us any necessary information relating to the Goods within a sufficient time to enable us to perform the contract for the sale and purchase of Goods made pursuant to these Terms ("Contract").
4. We reserve the right to make any changes in the description of the Goods which may be issued by us to you ("Specification") which does not materially affect the quality or performance of the Goods or which may be required to conform with applicable statutory or EC requirements.
5. The quantity, quality and description for the Goods shall be set out in your order (if accepted by us).
6. Our employees or agents are not authorised to make any representations concerning the Goods unless confirmed by one of our Senior Managers in writing. In entering the Contract you acknowledge that you do not rely on any such representations which are not so confirmed.
7. Delivery of the Goods or any part of them in accordance with these Terms ("Delivery") shall be made to premises nominated by you on or where no place is nominated by you at your invoice address or if unspecified by you your principle place of business.
8. Unless otherwise agreed between us the price of the Goods as specified in our price lists or as otherwise agreed between us ("Price") shall not include the costs of Delivery. We shall be entitled to charge you for the costs of Delivery.
9. The Price is exclusive of any VAT or other taxes or duties (which will be applied in accordance with the legislation in force at the tax point date) for which you shall additionally be liable.
10. Unless agreed in writing between us the Price includes all costs of packaging in respect of the Goods. You shall dispose of all waste packaging in accordance with all legislation in force including but without limitation all relevant legislation for the protection of the environment.
11. We reserve the right by giving notice in writing to you at any time before Delivery of the Goods to increase the Price to reflect any increase in cost to us which is due to any factor beyond our control.
12. We shall be entitled to send the invoice for the Goods to you immediately the Goods have been despatched or when they are ready for despatch but are prevented or delayed from being despatched due to Force Majeure. Unless otherwise agreed in writing between us you shall pay any amount due under such an invoice in accordance with terms shown on that invoice.
13. You shall pay any amount due under any invoice by the agreed payment method.
14. If you fail to make any payment on the due date then without prejudice to any other right or remedy available to us we shall be entitled to:
14.1 cancel the Contract or suspend any further Deliveries; and
14.2 appropriate any payment made by you to such of the Goods (or any goods supplied under any other contract between us) as we may think fit (notwithstanding any purported appropriation by you); and
14.3 charge interest at 4% above prevailing inter bank rate to accrue on a daily basis and
14.4 demand payment of all outstanding balances from you whether due or not and or cancel all outstanding orders and or decline to make further Deliveries (under this or any other contract between us) except upon receipt of cash;
14.5 recover the Price notwithstanding that Delivery may not have taken place and the property in the Goods has not yet passed to you.
15. Except where insolvency laws provide otherwise you shall not be entitled to withhold or set off payment for Goods for any reason whatsoever.
16. In addition to any right or lien to which we may by law be entitled we shall in the event of your insolvency or your failing to render payment for any Goods supplied by us when due be entitled to a general lien on all goods of yours in our possession for the unpaid price of any Goods sold and
17. In addition and without prejudice to our other rights we may on 14 days' notice to you sell any goods of yours on which we have a lien and shall be deemed your agent for the purposes of affecting such sale. We may apply the proceeds of sale towards the satisfaction of sums due from you without prejudice to our right to recover the balance thereof from you.
18. All Goods for which the payment terms have not been complied with and which are held by us at our premises are so held at your risk.
19. If we are prevented from delivering any Goods at the time provided for Delivery by reason of Force Majeure then the period for Delivery shall be extended by the time lost due to such Force Majeure. Details of Force Majeure will be forwarded by us to you as soon as reasonably practicable.
20. Subject to clause 19 above, should you fail to take Delivery of the Goods on or before the date agreed between us for Delivery ("Delivery Date") we shall be entitled: 20.1 if we have not already done so to invoice you for such Goods forthwith and to take the invoice into account; 20.2 to treat the Contract as repudiated by you and without prejudice to any other right we may have against you we shall be entitled to resell the Goods and shall be entitled to be indemnified by you for any Loss which we suffer.
21. We reserve the right to deliver the Goods by instalments and where we do so each Delivery shall constitute a separate contract and any failure by us to deliver any one or more of the instalments in accordance with these Terms or any claim by you in respect of any one or more instalments shall not entitle you to treat the Contract as a whole as repudiated.
22. You shall store and transport the Goods in conditions that will preserve the Goods in good condition.
22.1 Subject as expressly provided for herein all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law and we shall have no liability to you other than as expressly set out herein.
22.2 Any Specification supplied by us shall be approximate only and for information and guidance only and shall not form part of the Contract.
22.3 You shall be deemed to have inspected the Goods upon Delivery and we shall have no liability to you in relation to damage to the Goods in transit which was apparent on inspection or which would have been apparent on reasonable inspection unless such damage is notified to us in writing within three days of Delivery specifying the damage to the Goods.
22.4 We shall have no liability to you in relation to non-delivery of the Goods unless such non-delivery is notified to us in writing within three days of the Delivery Date.
22.5 Where any valid claim in respect of short delivery or non-delivery of or damage to the Goods is notified to us in accordance with these Terms, we shall be entitled to supply goods to remedy any short delivery or non-delivery or damage free of charge or, at our discretion, refund to you the price of the relevant Goods and we shall have no further liability to you.
22.6 Any claim based upon a defect in the quality of the Goods or a failure of the Goods to meet their Specification must be made in writing by you within thirty days of the date of Delivery of the Goods where the defect or failure was ascertainable by reasonable inspection or where the defect was not ascertainable by reasonable inspection upon Delivery within thirty days of the date upon which the defect or failure became apparent to you or ought reasonably to have become apparent to you provided that you shall not be entitled to make any claim based upon the quality or condition of the Goods or any failure of the Goods to meet Specification after the expiration of six months from the date of Delivery of the Goods.
22.7 Notwithstanding any provision to the contrary set out herein our total liability to you under the Contract shall not exceed the total value of the order in relation to which liability arose
22.8 If any valid claim is made by you in accordance with Condition 22.6 we shall be entitled at our sole discretion to:
22.8.1 replace the defective Goods or parts thereof free of charge; or
22.8.2 refund to you the price (or proportionate price) of the defective Goods; And in either case we shall have no further liability to you
22.9 We shall have no liability to you under or arising out of or otherwise in connection with the Contract or the supply of Goods by us to you and/or their use or resale by you in contract tort including negligence or breach of statutory duty or by reason of any representation (unless fraudulent) or any implied warranty condition or other terms or any duty at common law or otherwise for loss of profit, business, contracts, revenues or anticipated savings or for any special indirect or consequential damage or loss of any nature or for the costs of recall of any Goods except as may otherwise be expressly provided for in these Terms. Subject to Condition 22.11 the provisions of this Condition 22 represent the full extent of our liability with regard to any defect in the Goods or a failure by the Goods to meet Specification.
22.10 Notwithstanding any provision of these Conditions we shall have no liability to you in respect of any defect in the quality of the Goods or the failure of the Goods to meet Specification where the defect or failure has arisen as a result of improper storage or any act or omission of yours.
22.11 For the avoidance of doubt nothing herein contained shall be deemed to exclude or restrict our liability for death or personal injury arising due to our negligence.
23. You shall indemnify us against all actions claims, demands losses, (whether direct, indirect consequential or otherwise) loss of profit, loss of revenue, expenses, costs actions and proceedings ("Loss") suffered by us which arises as a result of the breach by you of any provision of the Contract or your breach of statutory duty or your negligence or the negligence of any of your representatives.
24. The risk in the Goods shall pass to you immediately upon Delivery or if you wrongfully fail to take Delivery of the Goods the time when we have tendered Delivery of the Goods. The place of delivery is as stated on the order and title of the product only passes on full payment. Until that time the product should be insured and stored separately and not modified, interfered with or pledged. If sold before the title passes, monies are held by you as our agent. We shall be permitted to enter your storage premises to repossess the goods if not paid for within the terms of sale. Product should be inspected promptly and any return must comply with our return procedure.
25. Until payment by you in full of the Price and any other monies due to us in respect of all other products or services supplied or agreed to be supplied by us to you (including but without limitation any costs of Delivery) we hold a retention of title in respect of all Goods until all sums due to us are paid in full; and you shall hold the same as the fiduciary, agent of and bailee for us and accordingly you shall record the serial numbers of the said Goods supplied by us and shall appropriately identify and mark the same as being our property and you will insure such Goods for their replacement value with a reputable insurer and note our interest on any policy documents.
26. Until such time as property in the Goods has passed to you (and provided that the Goods have not been resold) we shall be entitled at any time to require you to deliver up the Goods to us and if you fail to do so forthwith we or our agents may enter your premises and take possession of any Goods in which property remains ours and remove and dispose of them as we think fit and you shall make no claim against us in respect of such entry and disposal. We shall apply the proceeds of disposal (after deduction of all expenses) in discharge of the amount unpaid by you.
27. In these Terms "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force as at the date when the Contract is made. Unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms but if there is any conflict between the provisions of Incoterms and these Terms the latter shall prevail.
28. Where the Goods are supplied for export the provisions of Conditions 27, 28 and 29 shall apply (subject to any special terms agreed in writing between the parties).
29. Unless otherwise agreed in writing between the parties the Goods shall be delivered fob the air or sea port of shipment.
30. If you shall:
30.1 default in or commit any breach of any of your obligations to us under these Terms; or
30.2 be involved in any legal proceedings in which your solvency is in question or serious doubts shall exist as to your solvency; then in any such case we shall immediately become entitled to suspend further performance of the Contract for such time as we shall in our absolute discretion think fit or forthwith terminate the Contract and if the Goods have been delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
31. We shall not be liable for any failure to observe or breach of the Terms caused by circumstances amounting to a Force Majeure or due to your instructions or lack of instruction. For the purposes of these Terms "Force Majeure" shall mean any circumstances beyond our reasonable control, including but not limited to acts of God, war, terrorism, riots, civil commotions, strikes, lockouts, trade disputes, fires, explosions, breakdowns, interruptions of transport, government action and delay in delivery by our suppliers.
32. You shall not be entitled to assign, transfer, subcontract or otherwise delegate any of your rights or obligations hereunder. No waiver by us of any breach of Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
33. If any provision of these Terms 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 the remainder of the provision in question shall not be affected.
34. Warranty provisions apply as set out in the specific applicable product warranty.
35. Third party installed software is subject to license and warranty of the software licensor.
36. You are responsible for the choice of product and its suitability for the purpose as well as for integration of third party materials.
37. Statutory rights are unaffected by this agreement and applicable Data Protection Laws apply.
38. The parties hereto intend that no term of these Terms may be enforced by any person, entity or body that is not a party to this agreement.
39. All Contracts shall be governed by Irish law and the Irish courts shall have exclusive jurisdiction for the hearing of any dispute between the parties save in relation to their enforcement where their jurisdiction shall be non-exclusive.