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Applicability:
1. These terms and conditions (“these Terms”) shall apply to all individual contracts for the sale by ARLL Marketing Europe Limited (“the Company”) of goods (“Goods”) to any buyer (“the Customer”).
2. These Terms are deemed to apply and shall be deemed to be agreed upon the Customer placing an order whether oral or in writing or both oral and in writing and making payment for the Goods and shall supersede/override in their effect any of the Customer’s terms and conditions which might be attached to the Customer’s individual order or later forwarded to the Company.
Jurisdiction:
3. It is hereby agreed that all sales of Goods by the Company to the Customer will be transacted in the UK or in Ireland depending on the location of the Principal. Therefore, if the Principal is located in the United Kingdom, the transaction will take place in the UK, through Attracting Real Leverage Limited, 325 Highfield Road, Hall Green B280BX, Birmingham, GB120611374 and the Terms shall be governed by and interpreted in accordance with the Laws of England and Wales and the parties hereto submit to the exclusive jurisdiction of the Courts of England and Wales.
On the other hand, if the Principal is located in the European Union (EU), the transaction will take place in Ireland, through ARLL Marketing Europe Limited, 9 Main Street, Blackrock, Co Dublin, A94 N6DO, 3677008AH and the Terms shall be governed by and interpreted in accordance with the Laws of Ireland and the parties hereto submit to the exclusive jurisdiction of the Courts of Ireland.
Sale as agent for manufacturer:
4. It is hereby agreed that all sales of the Goods by the Company to the Customer are transacted in the Company’s capacity as agent for the manufacturer or supplier of the Goods (“the Principal”) whose identity is at all material times disclosed to the Customer. Specifically, the Customer hereby accepts and agrees that:
a) warranties representations and statements as to the Principal’s title to the Goods are given on behalf of the Principal;
b) all descriptions samples specifications and warranties of quality and condition of the Goods and their accordance with samples, are again given solely on behalf of and by the Principal;
c) therefore, the Customer agrees that it shall look solely and exclusively to the Principal for liability and responsibility for any defect in quality or quantity in, damage to, or breach of warranty in respect of the Goods, and not to the Company and the Customer further agrees that any claim and proceedings brought through the court and any legal or other costs relating thereto shall similarly be directed solely to the Principal as further provided in clause 6 below.
Implementation of Sale, Title and Risk, Invoicing and Payment:
5. It is agreed that the procedure for implementing the sale of the Goods to the Customer shall proceed as follows:
a) the Customer and the Company shall agree upon the Goods to be ordered and the Company’s price for the same;
b) once the Customer accepts the offered price, the Customer shall proceed to order the Goods;
c) the Company shall forthwith 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”);
d) on receipt of the pro forma referred to at sub para c above, the Customer shall pay to the Company in Euros by transfer in cleared funds to one of the Company’s the bank account for Euros IBAN: IE14BOFI90102845271664 the full amount shown on the pro forma i.e. the price of the Goods.
e) If payment of all or any part of the price is not made by the due date, the Company shall be entitled to:
i. Charge to the Customer any and all costs incurred in procuring the collection of the late payments which shall thereafter be deemed to be included as part of the Price which could include, but is not limited, to the costs of engaging a third party debt recovery agent or solicitor
ii. Require payment in advance or delivery in relation to any Goods not previously delivered
iii. 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
iv. Terminate all or any of the Contracts
f) 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.
g) 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 Principal at the Principal’s place of manufacture/delivery;
h) 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 Principal’s premises and transport of the Consignment to the Customer’s nominated destination;
i) 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 4 f above which is agreed and effective in full.
j) before releasing the Consignment, the Principal will ensure that at the time of dispatch from the Principal’s premises the Consignment is in good merchantable condition in accordance with the Principal’s description sample or statement as to the condition of the Goods in the Consignment and that the quantity of the Goods in the Consignment is correct;
k) 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;
l) in the event that the Regulations apply, the Customer shall be responsible for complying with the Regulations and must arrange with the Principle the provision of all documents required to satisfy the Regulations to include:
i. 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;
ii. 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;
iii. 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
iv. appropriate protection against damage during transportation, loading and unloading in particular through sufficient packaging and appropriate stacking of the load.
m) all title and risk in the Consignment shall pass to the Customer at the point of release to the Customer at the Principal’s premises. It is for the Customer to ensure that at the point of release at the Principal’s warehouse the condition of the Goods is satisfactory and in accordance with the Principal’s warranty and description, and that the full quantity of the Goods in the Consignment is present.
n) upon the Customer notifying the Company of release by the Principal of the Consignment, the Company shall release the price deposited with it to the Principal.
6. The Customer hereby warrants that in the event of the Company suffering any cost liability, penalty or damage resulting from the Customers 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. It is hereby agreed that any issues complaints or claims as to any defect of quality or quantity in the Goods in the Consignment on the part of the Customer shall be directed solely to the Company with whom all liability rests.
8. The Customer by these terms accepts the Company’s position as set out above and in particular in Clause 5 hereof, and by these terms agrees that in the event of dispute or complaint or claim or matters occurring giving rise thereto against the Principal and generally in any event, the Customer shall not at any time directly or indirectly make any disparaging or derogatory comments or statements to any third parties about the Company whether orally or in writing in any medium (including for the avoidance of doubt posting on the internet on websites or web portals anywhere in the world).
TERMINATION, LIABILITY, WAIVER AND REMEDIES
9. Without limiting its other rights or remedies, 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.
10. Subject to clauses 10 and 12, if the Company fails to comply with these Conditions, the Company shall only be responsible for any losses that the Customer suffers to the extent that those losses are a reasonably foreseeable consequence of the Company’s failure to comply with these Conditions.
11. Subject to clause 11, the Company shall have no liability for any losses that result from the Customer’s failure to comply with these Conditions that fall into following categories:
i. Loss of income or revenue
ii. Loss of business
iii. Loss of profits or contracts
iv. Loss of anticipated savings
v. Loss or corruption of data
vi. Loss of goodwill or business opportunity
vii. Any waste of time or
viii. Special, indirect or consequential loss
12. This cause does not include or limit in any way the Company’s liability for:
i. Death or personal injury caused by the Company’s neglect,
ii. Fraud or fraudulent misrepresentation or
iii. Any breach of the obligations implied by the Sale of Goods Act 1980 or
iv. Any other matter for which it would be illegal or unlawful for the Company to exclude or attempt to exclude the Company’s liability.
13. Subject to clause 11 and 13 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.
14. 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.
15. 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
16. On termination of the Contract for any reason:
i. 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
ii. 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
iii. Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
Confidentiality
17. 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”).
18. 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.
19. 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
20. 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.
21. Each of the parties shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with Clauses 16 and 17 above.
22. The parties further agree that they shall comply strictly with all the obligations set forth in the Appendix hereto 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.
General:
23. 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.
24. 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 Queen’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.
25. 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.
26. Headings of clauses are not treated as part of the contract or as guides to its interpretation.
27. 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.
28. 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.
29. 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.
30. 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.
31. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with Irish law, and the Parties hereby irrevocably submit the exclusive jurisdiction of the courts of Ireland.
APPENDIX: CONFIDENTIALITY PRIVACY AND DATA PROTECTION
DEFINITIONS
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.
DATA PROTECTION
1.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 1 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
1.2 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). Schedule 1 hereto sets 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).
1.3 Without prejudice to the generality of clause 1.1, 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.
1.4 Without prejudice to the generality of clause 1.1, 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 in Schedule 1 hereto;
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:
i) the Customer or the Provider has provided appropriate safeguards in relation to the transfer;
ii) the Data Subject has enforceable rights and effective legal remedies;
iii) 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
iv) 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) notify the Customer without undue delay on becoming aware of a Personal Data breach;
h) 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
i) maintain complete and accurate records and information to demonstrate its compliance with this clause.
1.5 The Customer consents to the Provider appointing 1.5 as 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 1.5. 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 1.5.
1.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 1.6 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).
PURPOSE OF PROCESSING
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.
DURATION OF THE PROCESSING
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.
TYPES OF PERSONAL DATA
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
All contractual details relevant to the parties and/or to the Agreement
CATEGORIES OF DATA SUBJECT
Suppliers and manufacturers involved in the goods subject to the Agreement; Customers and directors in Customer companies
“You the buyer agree to take the goods (in a mixed consignment of new, unused, faulty, incomplete and repairable goods) in their current state.
We the seller give no warranties in relation to the quality of the goods, their suitability for any purpose or the proportion between the different types of goods in the mixed consignment described above. All such warranties, whether express or implied by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.”