1 DEFINITIONS
1.1 In the Terms the following words and phrases shall have the following meanings:
“Account Opening Form” The document within which the Customer will register its details with the Company and accept the herein Terms and Conditions by way of signing same;
“Contract” Any contract for the purchase of goods made between the company and a customer;
“Company” ARLL Marketing Europe Limited;
“Customer” The party requesting the Goods;
“Damage” Damage to Goods which has taken place before its delivery to the Company, and the term “Damaged Goods” shall be interpreted accordingly;
“Goods” The goods which are the subject of the Contract;
“Manufacturer” The manufacturer and/or supplier of the Goods;
“Non-compliant Goods” Goods which do not comply with the relevant specification supplied by the Company;
“Order” The written request by the Customer for the purchase of Goods sold by the Company;
“Parties” The Company and a Customer;
“Price” The price to be paid by the Customer to the Company under a Contract;
“Specification” Any specification of the Goods referred to in the Account Opening Form, or by any other means of placing an order for Goods between the Company and the Customer as agreed between the parties;
“Terms” This document, which may be amended, altered or otherwise modified by the Company at any time, and from time to time, without notice to the Customer”
2 APPLICABILITY
2.1 This Contract constitutes the entire agreement between the Parties. The Customer acknowledges and agrees that it has not relied on any statement, promise or representation (whether written, oral, or implied) made or given by or on behalf of the Company which is not set out in the Contract. Any samples, descriptive matter, or advertising issued by the Company and any descriptions issued in the Company’s promotional material are issued for the sole purpose of giving an approximate idea of the Goods described in them and they shall not form part of the Contract.
2.2 The Contract shall be formed and binding when an Order to buy the Goods is delivered by the Customer to the Company and is accepted in writing by the Company. Any Order placed may be cancelled by the Company if the Company does not receive within 5 working days of the date of the placed Order a written acknowledgment signifying the Customer’s acceptance of the Order without variation provided that the performance of delivery of the Goods by the Company pursuant to the Order shall constitute acceptance of these Terms and Conditions.
2.3 Any Contract may only be cancelled or varied by the Customer with the prior written consent of the Company and on condition that the Customer shall indemnify the Company in full against all losses, costs, damages, charges and expenses incurred by the Company as a result of such cancellation or variation.
2.4 The Order, Account Opening Form, together with these Terms and Conditions and any documents incorporated herein and therein by reference, constitutes the sole and entire agreement of the Company and the Customer with respect to the purchase and sale of the Goods and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties and communications, both written and oral, with respect to the subject matter of the Order. These Terms and Conditions prevail over any terms and conditions proposed by the Customer.
2.5 If there is any conflict between the Terms and Conditions or any terms of any Order, then these Terms and Conditions shall prevail.
2.6 All sales of the Goods by the Company to the Customer are transacted in the Company’s capacity as agent for the Manufacturer whose identity is at all times disclosed to the Customer. The Customer here accepts and agrees that:-
a) warranties, representations and statements as to the Manufacturer’s title to the Goods are given on behalf of the Manufacturer;
b) all descriptions, samples, specifications and warranties as to quality and condition of the Goods and their accordance with samples, are given solely on behalf of and by the Manufacturer;
3 SPECIFICATION OF GOODS
3.1 The Company shall supply the Goods to the Customer as set out in the Specification.
3.2 Should the Customer alter the Specification without prior agreement of the Company, the Company reserves the right to cancel or vary the Contract with no associated cost to be borne by the Company.
3.3 The Customer is aware that the products it purchases from the Company are sold on “as is” basis.
3.4 By purchasing the Goods, the Customer acknowledges that it is familiar with and accepts these terms. The Customer’s purchase is subject to the version of the Terms and Conditions that it, at the time of the purchase, has read and accepted.
4 DELIVERY/SHIPPING TERMS
4.1 The Company will, subject strictly to the Goods being made available to the Company in order to ensure a timely delivery, deliver the Goods on the date(s) to be agreed between the Parties.
4.2 For the avoidance of doubt, late delivery of Goods will not entitle a Customer to reject the Goods and terminate the Contract.
4.3 Delivery shall be completed when the Goods have been unloaded at the point of delivery specified in the Contract. The Customer must then sign the transport document furnished by the Company and email this to the Company using the email address as noted on the transport document.
4.4 A strict condition of these Terms and Conditions is that all unloading of Goods must take place within 2 hours from the time that the Goods reach their point of delivery. Should the Company incur any charges as a result of the Customer’s failure to abide by this condition, the Company hereby reserve their right to seek payment from the Customer in this respect.
4.5 Is it not the policy of the Company to allow the Customer to collect Goods, however, in limited circumstances and subject to agreement by the Company, the Company will facilitate the Customer’s request to collect the Goods from the Company’s premises. The Customer shall coordinate the collections with the Company’s designated representative. The Customer must ensure that someone is present at the time of the hand over to take possession of the Goods. Ant costs that the Company incurs because no one is present, such as extra shipping costs, storage costs, and administrative costs, may be charged by the Company to the Customer. The Customer shall promptly notify the Company of any anticipated delays in the collection of the Goods. The Company will not be liable for any loss, damage, or deterioration of Goods that may occur due to the Customer’s delay in collection.
4.6 Upon collection, the Customer shall inspect the Goods and if there are any discrepancies, damages, or defects, these must be immediately made known to the Company. The Customer’s acceptance of the Goods shall constitute acknowledgment that the Goods are in satisfactory condition and conform to the agreed Specifications.
4.7 The Customer will be responsible for loading the Goods onto their transport. The Customer will accept all liability for any loss, damage, or injury arising from the collection, loading, transportation, or handling of the Goods from the Company’s premises to their destination.
4.8 Payment for the Goods shall be made in accordance with these Terms and Conditions and the Customer shall not be relieved of their payment obligations by virtue of collecting the Goods.
4.9 In the event that the Customer fails to collect the Goods as agreed or breaches any terms of these Terms and Conditions, the Company may exercise their rights and remedies as provided herein, including but not limited to cancellation of the order and pursuing any legal remedies available. Any damage and/or costs incurred by the Company as a result (including but not limited to transport, administrative, and/or storage costs) will be recovered and claimed from the Customer.
5 CERTIFICATION AND DOCUMENTATION
5.1 It is the responsibility of the Customer to provide to the Company all complete and correct documentation for clearance of the Goods at the port of destination. Any additional charges incurred at the port of destination due to incorrect or incomplete documentation will be payable by the Customer or reimbursed by the Customer to the Company within 30 days of payment.
6 PRICE AND PAYMENT TERMS
6.1 The price of Goods for the purpose of a Contract shall be such price as is stated on the invoice that the Company issues to the Customer.
6.2 The prices stated by the Company are exclusive of VAT and other government levies, taxes and any costs to be incurred in the context of the agreement, unless stated otherwise.
6.3 Upon completion of an Order by the Customer, the Company shall send to the Customer a pro forma setting out the price and quantity of the Goods to be ordered in any agreed sale consignment (“the Consignment”);
6.4 On receipt of the pro forma referred to above, the Customer shall pay to the Company in Euros or Pounds by transfer in cleared funds to the Company’s bank account the full amount shown on the pro forma i.e., the price of the Goods.
Our companies and bank accounts are:
- United Kingdom, Attracting Real Leverage Ltd., BARCLAYS, IBAN: GB82BARC20077183081540, in GBP
- Ireland, Arll Marketing Europe Ltd., BANK OF IRELAND, IBAN: IE14BOFI90102845271664, in EURO
- Romania, Euroarll Sales SRL, CEC BANK, IBAN: RO14CECEB000C1EUR2073396, in EURO
6.5 If payment of all or any part of the price of the Goods is not made by the Customer, the Company shall be entitled to:
a. charge the Customer any costs incurred in procuring the collection of the late payments which shall thereafter be deemed to be included as part of the price which would include, but not be limited to, the costs of engaging a third-party debt recovery agent or solicitor;
b. require payment in advance or delivery in relation to any Goods not previously delivered;
c. refuse to make delivery of any such undelivered Goods and without incurring any liability at all to the Customer for non-delivery or any delay in delivery;
d. terminate all or any of the contract. The Customer shall pay all amounts due under each Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-of or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing by it to the Customer against any amount payable to the Company from the Customer;
e. immediately upon payment to the Company by the Customer of the amount shown in the pro forma, the Company shall arrange for the allocation of the Consignment by the Manufacturer at the Manufacturer’s place of manufacture/delivery;
f. the Consignment shall be accepted by the Customer strictly on an ‘ex works’ basis and the Customer shall then arrange collection of the Consignment from the Manufacturer’s premises and transport of the Consignment to the Customer’s nominated destination;
g. it is noted and agreed between the parties hereto that if the Company has arranged with the Customer to manage/arrange the transport of the Consignment to the Customer then this is by entirely separate contract and outside the scope of these terms and conditions and is subject to the terms on which that separate service is given by the Company (i.e. said transport if applicable in the case of the Consignment is arranged strictly on the basis that transport is covered by insurance in full against theft or damage to the goods in the Consignment only on the condition that the Customer notes on CMR shipping document any claim for damage destruction or theft immediately on receipt by the Customer), and it is noted and agreed that such separate service in no way detracts from the agreed terms hereinabove at clause 7.4 (f) above which is agreed and effective in full;
h. the Customer shall provide the Company with notice, in writing, in the event that the Customer intends to sell the Goods in the Consignment directly to a household consumer as defined by the Waste Electrical and Electronic Equipment Regulations 2014 (“the Regulations”) and as a result becomes subject to the Regulations;
i. in the event that the Regulations apply, the Customer shall be responsible for complying with the Regulations and must arrange with the Manufacturer the provision of all documents required to satisfy the Regulations to include:
- a copy of the invoice and contract relating to the sale and/or transfer of ownership of the EEE which states that the equipment is destined for direct re-use and that it is fully functional;
- evidence of evaluation or testing in the form of a copy of the records (certificate of testing, proof of functionality) on every item within the consignment and a protocol containing all record information according to paragraph 3;
- a declaration made by the holder who arranges the transport of the EEE that none of the material or equipment within the consignment is waste as defined by Article 3(1) of Waste Directive(1); and
- appropriate protection against damage during transportation, loading and unloading in particular through sufficient packaging and appropriate stacking of the load.
6.6 The Customer hereby warrants that in the event of the Company suffering any cost liability, penalty or damage resulting from the Customer’s failure to comply or prove compliance with the Regulations, the Customer agrees to indemnify the Company fully for such costs liability, penalty or damage.
7 TITLE AND RISK IN GOODS
7.1 Risk in the Goods purchased shall pass to the Customer upon completion of delivery and title to the Goods or any part thereof shall pass upon the earlier of delivery or the time of any payment being made therefore.
7.2 The Customer shall be responsible for transport and unloading costs and insurance of Goods to their full value against all risk of damage or loss prior to completion of delivery.
7.3 The legal and beneficial ownership of the Goods will not pass to the Customer until the Company has received payment in full for the Goods.
8 LIMITATION OF LIABILITY
8.1 The Company shall not be liable to the Customer or any third party for any indirect, special, incidental or consequential loss, or any economic loss, lost profits, lost revenue, lost business or lost goodwill, whether in an action in contract or tort (including, without limitation, negligence and strict liability) resulting from the Company’s performance or any failure to perform hereunder including, without limitation, loss of anticipated profits or benefits, even if the Company has been advised of the possibility of such damages.
8.2 Nothing in these Terms and Conditions shall limit or exclude the Company’s liability for:
a) death or personal injury caused by the Company’s negligence or;
b) fraud or fraudulent misrepresentation; or
c) breach of the terms implied by s12 of the Sales of Goods Act 1893 (as amended); or
d) for any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
8.3 Subject to clause 8.2 above, the Company’s total liability in connection with the Contract whether based on contract, tort (including negligence), strict liability or otherwise is limited to an amount equal to the price under the Contract.
8.4 In respect of any loss of or damage to the Customer’s physical property which is caused by the Company’s negligence or failure to comply with these Conditions the Company’s total liability is limited to an amount equal to € 250.00.
8.5 All warranties, clauses and other terms implied by statute or common law (save the conditions implied by the Sale of Goods Act 1980) are, to the fullest extent permitted by law, excluded from the Contract.
9 TERMINATION
9.1 Without prejudice to any other remedies available, the Company may terminate the Contract and/or suspend its obligations under the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under any Contract on the due date for payment or if the Company reasonably believes that the Customer may fail to pay any amount due under any Contract including as a result of the Customers’ insolvency or deemed insolvency within the meaning of the relevant provisions of the Personal Insolvency Act 2012, European regulations or any other equivalent legislation or regulations.
9.2 The Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.
The accrued rights and remedies of the Parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry and
Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
10 CONFIDENTIALITY
10.1 From time to time during the term of this Agreement, the parties may require from each other certain secret confidential information, including knowledge, information, data, know-how, concepts, ideas, methods, processes, formulae, trade secrets, procedures, techniques and improvements and all other compilation of information (whether or not reduced in writing or in electronic format or whether or not patentable or copyrightable) which are or may in any way be related to the materials or to the respective businesses of the parties (“Proprietary Information”).
10.2 The Proprietary Information is agreed by the parties to include the personal data of the customers suppliers and contacts of the Company and of the Customer, and the terms of this Agreement.
10.3 The parties shall keep strictly secret and confidential and shall not, either during or after termination of this Agreement, without the other party’s written consent disclose to any third parties or use at any time after termination of this Agreement any Proprietary Information of the other party, excepting that either party may disclose such Proprietary Information to its employees for whom such information is necessary for performance of their duties and for the purpose of carrying out the parties’ respective obligations under this Agreement. The Parties shall use their best efforts to compel any parties to whom they provide Proprietary Information to keep such information confidential in accordance with this clause. The parties agree not to use the Proprietary Information of the other party commercially or for any other purpose other than for the purpose contemplated by this Agreement.
10.4 Without prejudice to the matters in Clause above, the parties may disclose such Proprietary Information as may be required by law, court order or any governmental or regulatory authority.
10.5 Each of the parties shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with the above clauses.
10.6 The parties further agree that they shall comply strictly with all the obligations set forth in the Appendix hereto these Terms and Conditions to ensure compliance with the provisions of the Data Protection Act 1988 and all amendments thereto from time to time and with the provisions of the General Data Protection Regulation (EU 2016/679) and any amendments thereto from time to time.
11 GENERAL
11.1 The Company may at any time assign, charge, subcontract or deal in any other manner with all or any of its rights under the contract. The Customer shall not, without the prior written consent of the Company, assign, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. Therefore, no order or supply of the Goods shall be assignable by the Customer without the prior written consent of the Company.
11.2 In the event of any stoppage delay or interruption of work in the establishment of either the Company or the Customer on account of strikes, lockouts, trade disputes, breakdowns, accidents, Act of God or King’s enemies or any cause whatever beyond the control of the Company or the Customer respectively then upon notice in writing stating the cause, deliveries may be wholly or partially suspended and the duration of such suspension added to any delivery date or period herein specified. If the cause of such suspension lasts for more than three months either party shall upon written notice to the other be entitled to treat the contract as having been in law frustrated by the date of such notice.
11.3 The Company shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, the Company shall be entitled to a reasonable extension of the time in order to perform its obligations. If the delay persists for more than 30 days, either of the Parties may terminate the Contract.
11.4 Headings of clauses are not treated as part of the contract or as guides to its interpretation.
11.5 A person who is not a party to this Agreement has no right under the contract to enforce any terms of these Terms but this does not affect any right or remedy of a third party specified in these terms or which exists or is available apart from this provision.
11.6 No forbearance delay or indulgence by the Company in enforcing the provisions of these Terms shall prejudice or restrict the rights of the Company nor shall any waiver of its rights operate as a waiver of any subsequent breach, and no right power or remedy hereby conferred upon or reserved for the Company is exclusive of any other rights power or remedy available to the Company and each such right power or remedy shall be cumulative.
11.7 If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions of the Contract shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
11.8 Each of the parties hereto in as an independent contractor, and nothing in these Terms shall be construed to imply the relationship between the parties is a partnership or employer and employee or joint venturers.
12 FORCE MAJEURE
12.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the supplies if it is prevented from or delayed or hindered in the carrying on of its business due to circumstances beyond the reasonable control of the Company.
12.2 For purposes of these Terms, a “Force Majeure Event” refers to the occurrence of unforeseeable and/or unavoidable circumstances beyond a party’s control that, by their nature, make such party’s performance commercially impractical, including, without limitation, acts of God or the public enemy, fire, flood, acts of war, government action or lockdown, accident, earthquakes, explosion, epidemic, pandemic, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. A party’s economic hardship or changes in market conditions are not considered Force Majeure Events.
13 VALIDITY
The legality or unenforceability of any clause or part thereof of this Agreement will not affect the legality or unenforceability of the other clauses or parts thereof and the parties agree that if any clause or part thereof is found to be illegal or unenforceable, they will substitute a clause in a form or similar form to the offending clause as is possible without thereby rendering such clause illegal, invalid or unenforceable.
14 NO WARRANTIES
Each party hereto acknowledges that in entering into this Agreement it does not do so on the basis of, and does not rely on, any representation, statement, warranty, condition, terms or other provision whether express or implied and whether statutory or arising under the common law or otherwise save to the extent as it may be expressly provided herein, and all representations, statements, warranties, conditions, terms and provisions implied by statute or common law or otherwise as aforesaid are hereby excluded to the fullest extent permitted by law.
15 PROPER LAW AND JURISDICTION
The Contract or Terms and Conditions and any dispute or claim arising out of or in connection with them or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland and shall be subject to the jurisdiction of the Irish courts subject to the right of the Company to seek injunctive relief outside Ireland as appropriate.
16 MISCELLANEOUS
16.1 The Customer shall, subject to the Company giving the Customer reasonable notice, allow for and contribute to audits, including permit the Company (or an auditor appointed on its behalf) to enter and inspect the Customer’s facility, premises, and systems, to inspect, audit, and take copies of relevant records and other documents, necessary in order for the Company to verify the Customer ‘s compliance with these Terms.
16.2 If any provision of these Terms is or shall become void in whole or in part the other provisions of these Terms shall remain fully valid and enforceable and the void provisions shall, where appropriate, be replaced in accordance with the meaning and purpose of these Terms.
16.3 The Customer shall keep secret all confidential information relating to the Company’s business which may become known to the Customer through its performance of the Contract or otherwise save only that such information may be disclosed to the extent necessary for the proper performance of the Contract.
17 APPENDIX: CONFIDENTIALITY, PRIVACY AND DATA PROTECTION
Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the Ireland, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in Ireland and then (ii) any successor legislation to the GDPR or the Data Protection Act 1988.
17.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 18.1 is in addition to, and does not relieve, remove, or replace, a party’s obligations under the Data Protection Legislation.
17.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and ARLL (“the Provider”) is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The clauses below set out the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject (as defined in the Data Protection Legislation).
17.3 Without prejudice to the generality of clause 18.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement.
17.4 Without prejudice to the generality of clause 18.1, the Provider shall, in relation to any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:
a) process that Personal Data only on the written instructions of the Customer unless the Provider is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Provider to process Personal Data (Applicable Laws). Where the Provider is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Provider shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Customer;
b) process the Personal Data only for the purpose set out herein;
c) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
d) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
e) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
• the Customer or the Provider has provided appropriate safeguards in relation to the transfer;
• the Data Subject has enforceable rights and effective legal remedies;
• the Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
• the Provider complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
f) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
h) maintain complete and accurate records and information to demonstrate its compliance with this clause.
17.5 The Customer consents to the Provider appointing a third-party processor of Personal Data under this agreement. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 18.4 As between the Customer and the Provider, the Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 18.5.
17.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 18.6 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
17.7 The purpose of data processing is for administering and delivering the service of the Provider under the Agreement, any follow-up dealings over payment for the service and marketing and advertising further products supplied to or by the Data Processor.
17.8 The duration of the processing will be for the duration of delivering the service of the Provider under the Agreement, and any follow-up dealings over payment for the service and marketing and advertising further products supplied to or by the Data Processor.
17.9 The type of personal data to be processed will be all details identifying or relating to the identification of the Data Subject, including without prejudice to the generality of the foregoing contact details, such as telephone number, address, email and fax; family, lifestyle, education/training, employment, or financial details.
17.10 The categories of data subjects will be suppliers and manufacturers involved in the goods subject to the Agreement; Customers and directors in Customer companies.
