Terms & Conditions

General Terms and Conditions of Sale Date: 21st July 2021 Revision 4

Smarter Surfaces – 13 Garville Mews Rathgar, Dublin, Ireland

Article 1: General

(1) The sale of goods by the Seller (#Goods#) and/or the performance of services by the Seller (Services) under any contract awarded by the Buyer to the Seller(the Contract) and all quotations, offers, bids or proposals submitted by the Seller (Proposals) shall be subject to these Standard Sales Terms which shall apply to all future transactions between the Seller and the Buyer whether or not expressly agreed upon. Unless accepted before, these Standard Sales Terms shall be deemed to be accepted by the Buyer receiving Goods or Services under the Contract. Any notices of the Buyer making reference to any standard purchase terms of the Buyer shall be deemed to be without effect.

(2) Any agreement between the Seller and the Buyer in connection with the performance of the Contract shall be ineffective unless made in writing.

Article 2: Proposal, Quotes and Contract

(1) No Quote or Proposal submitted by the Seller shall be binding upon the Seller. For a valid Contract to be created, any acceptance of any Quote or Proposal and any order placed by the Buyer shall require confirmation by the Seller.

Article 3: Prices

(1) All Goods and Services shall be invoiced by the Seller and paid by the Buyer at the list prices of the Seller at the time of delivery plus sales tax at the applicable rate. All prices indicated are based ex works and shall include packaging unless otherwise stated. The shipment of Goods shall be at the risk of the Buyer.

Article 4: Delivery and Delivery Time

(1) Any agreement on any binding or non-binding delivery date or delivery time in any Contract shall be in writing.

(2) If any circumstances beyond the reasonable control of the Seller interfere with, delay or prevent the performance of any Contract, the Seller shall have the right to postpone any remaining delivery under the Contract for the duration of such circumstances or to rescind the Contract in total or in part. Circumstances beyond the reasonable control of the Seller shall include, but shall not be limited to acts of princes, disruptions of operations, strikes, lockouts, interferences through political or economic conditions, lack of necessary raw materials or consumables, transportation delays through traffic disruptions and circumstances beyond reasonable control at the premises of the Seller’s suppliers or at other factories or installations on which the maintenance of the Seller’s operations is dependent. If the delay caused by any such circumstances exceeds four(4) months, the Buyer shall have the right to rescind the Contract.

(3) The Seller shall have the right to make partial shipments or to go ahead with partial performance under the Contract and each such partial shipment or partial performance shall be deemed to be a separate sale.

(4) The Seller shall be under no obligation to deliver Goods or to perform Services unless the Buyer has performed its obligations as and when due.

(5) If the Buyer fails to accept any Goods or Services when due and the Buyer’s failure so to accept any Goods or Services or to participate in the acceptance of any Goods or Services constitutes a wilful breach of Contract or jeopardizes the objectives of the Contract, the Seller shall be entitled to damages for any loss incurred as a result thereof. Upon the failure of acceptance when due, any risk of deterioration or loss of the Goods shall be transferred to the Buyer.

Article 5: Transfer of Risk

The risks associated with the Goods shall be transferred from the Seller to the Buyer upon departure from the Sellers warehouse and delivery to the carrier. If shipment is delayed for any reason beyond the reasonable control of the Seller, said risks shall be transferred to the Buyer upon notice by the Seller that the Goods are ready for shipment.

Article 6: Warranty

(1) The Buyer shall not hold any warranty rights unless the Buyer has performed its inspection and complaint obligations. The Buyer shall hence inspect all Goods and all parts thereof for completeness, correctness and freedom from defects promptly upon receiving said Goods and notify the Seller in writing of any incompleteness, any incorrectness and any defect within one(1) calendar week from the day on which it received the Goods describing each such defect in detail. Any damages to the product must be reported prior to installation, any damages reported after installation will not be covered by warranty

(2) If Goods are defective, the Seller shall at its discretion, repair, replace or refund defective goods. If the Seller replaces any such defective goods, it shall cover costs and expenses incurred with the replacement goods such as transportation, the seller shall not be liable for any travel, labour, material costs or other costs incurred. The maximum liability of seller in any claim shall not exceed the purchase price of the goods.

(3) If the Seller is unable to repair or to replace any defective Goods or if any such repair or replacement is delayed unreasonably or if any such repair or replacement fails for any reason whatsoever or is unreasonable upon the Buyer, the Buyer shall be entitled to the relief provided for by law. The Seller shall in any such event be provided with an opportunity to make several replacements of defective Goods or to repair any defective Goods on two (2) occasions before such remedial action shall be deemed to have failed.

(4) Unless otherwise provided for hereinbelow, the Buyer shall for no reason whatsoever be entitled to any relief other than the relief laid down in this Article in the event of any defect in any of the Goods or Services. The Seller shall not be held liable for any loss incurred by the Buyer other than any damage to the Goods and shall more particularly, but without limitation of the generality of the foregoing, not be held liable for lost profits or any other financial loss.

(5) The warranty period for Goods shall be nine months ( 9) from the date on which the order is placed.

(6) The postage and freightage for the return of defective goods or parts thereof shall be paid for by the buyer until the returned goods are delivered to the seller and confirmed by the seller to be defective, should the goods be found to be defective the seller will refund this cost to the buyer. The buyer shall select the least expensive method of returning such goods or parts to the seller.

The sale of goods are final once the goods have left the seller’s warehouse. The goods are not returnable or refundable under this business to business sale contract unless goods are found to be defective

(7) The Buyer shall hold no warranty rights if the Goods were combined and used by the Buyer or any other person with parts supplied by any person other than the Seller or if the Goods were used for any purpose for which they are not fit, if any defect is attributable thereto.

(8) The Seller shall be under no warranty obligation with respect to any test product sold by the Seller expressly as a test product.

(9) The Seller is not responsible for any damage to goods during transport

Article 7: Reservation of Title

(1) The Seller shall own the security described in Clauses (2) through (5) herein below until the full payment of all receivables held by the Seller against the Buyer for any reason whatsoever including but not limited to current account receivables. If the value of security so owned by the Seller exceeds the value of the Seller’s receivables by over twenty percent(20%), then, at the request of the Buyer, the Seller shall release to the Buyer security of the Sellers choice to bring the coverage of receivables by security owned by the Seller down to approximately one hundred twenty percent(120%).

2) The title to Goods delivered by the Seller to the Buyer shall remain vested in the Seller until the conditions of Clause(1) hereinabove are satisfied. Any processing or transformation of any such Goods shall be for the Seller but at the sole risk of the Buyer and shall impose no obligation upon the Seller. The parties agree that in the event of a loss of the Seller’s title created by the provisions hereinabove through commingling, the Buyers interest in the commingled product computed on the basis of the invoiced value of the Goods and the other constituent parts of the commingled product shall be transferred to the Seller and the Buyer shall keep in custody the Sellers security interest free of any charge to the Seller. Goods in which the Seller holds a security interest are hereinafter referred to as #Title Reservation Goods#.

(3) The Buyer shall have the right to process and to sell Title reservation Goods during the ordinary course of the Buyers business if and as long as the Buyer has not defaulted under the Contract provided however that the Buyer shall not have the right to pledge or to assign a security interest in Title Reservation Goods. The Buyer hereby assigns to the Seller in full by way of security interest any receivables including but not limited to any current account receivables from the sale of any such Title Reservation Goods and any title in connection with any such Title Reservation Goods such as, without limitation, any title held against any insurer and any title under the rules of tort. The Seller hereby grants the Buyer irrevocably the power to collect receivables and titles assigned to the Seller in its own name, but for the account of the Seller. The power granted to the Buyer hereinbefore shall not be revoked unless the Buyer fails to perform its payment obligations under the Contract.

(4) If any third party takes action to seize any Title Reservation Goods through attachment or otherwise, the Buyer shall notify said third party that the title to said Title Reservation Goods is vested in the Seller and shall give prompt notice thereof to the Seller to allow the Seller to enforce its title. The Buyer shall be liable for all court and other costs incurred by the Seller to defend its title to such Title Reservation Goods unless said costs are reimbursed to the Seller by said third party.

(5) If the Buyer is in breach of contract and more particularly, but without limitation of the generality of the foregoing, fails to make payment when payment is due under the Contract, the Seller shall be entitled to take Title Reservation Goods back into possession or to have assigned by the Buyer any title the Buyer may hold against any third party for the return of any Title Reservation Goods. The exercise of any of said rights by the Seller shall not be deemed to be a rescission of the Contract.

Article 8: Payment

(1) Unless otherwise agreed upon, each invoice under the Contract shall be paid in advance or within thirty(30) days from the date of the invoice. Notwithstanding any instructions given by the Buyer, the Seller shall have the right to apply moneys received from the Buyer to the Buyers oldest debt first provided that the Seller shall notify the Buyer of the type of application made. If the Buyer also owes cost and interest, the Seller shall have the right to apply moneys received from the Buyer first to cost, then to interest and last to the principal to be paid.

(2) No payment by the Buyer shall be deemed to have been made unless the amount paid is at the unrestricted disposal of the Seller provided that in the case of checks payment shall be deemed to have been made when the amount paid has been credited to the Seller’s bank account.

(3) In the event of any late payment by the Buyer, the Seller shall be entitled to late payment interest at a rate which shall be eight(8) percentage points over and above the base rate of Bank of Ireland from time to time provided that the Seller shall be entitled to damages if the Seller demonstrates that the loss incurred is higher than the sum covered by the late payment interest provided for herein.

(4) If the Seller becomes aware of any circumstances in the light of which the Buyer’s creditworthiness is doubtful such as, without limitation, the refusal of any bank to honour any of the Buyers checks or the stoppage of the Buyer to make payments when payments are due, then upon notice by the Seller all amounts owed by the Buyer to the Seller whether or not due in the due course of business or whether or not paid by check, bill of exchange or promissory note shall become payable forthwith.

(5) The Buyer shall not have the right to set off any counterclaim against any claim of the Seller or to retain any payment on account of any counterclaim unless said counterclaim is undisputed or has been confirmed by an un-appeal able judgment provided that the Buyer may retain money for counterclaims under the same contract.

Article 9: Confidentiality

(1) Unless otherwise expressly agreed in writing, information provided by the Buyer to the Seller in connection with the Contract or any order under the Contract shall not be deemed to be confidential.

(2) Any test product delivered by the Seller to the Buyer and all data and information relating thereto shall be kept strictly confidential.

(3) The Buyer agrees not to post, share or discuss any matters related to the product, product queries on any social media or public platform all communications shall be limited to Letter, email, telephone.

Article 10: Limitation of Liability

(1) Any title to damages for any reason whatsoever including but not limited to tort shall be excluded unless any loss is due to any wilful act, neglect or omission or gross negligence provided however that said exclusion shall not be applicable to any death, injury or loss of health due to negligence on the part of the Seller or any wilful or negligent act, neglect or omission on the part of any of the Sellers agents or employees.

(2 ) Any liability for slight negligence shall be limited to liability for non-compliance with any obligation material for the performance of the Contract. Any liability for slight negligence, if any, shall be limited to liability not exceeding the purchase price of the goods.

(3) Clauses(1) through(2) hereinabove shall not be applicable to any titles under the Product Liability Act.

(4) Any exclusion or limitation of the Sellers liability under these Standard Sales Terms shall apply to the personal liability of the Sellers employees, agents and representatives mutatis mutandis.

Article 11: Applicable Law, Jurisdiction and Ineffectiveness of Provisions

(1) These Standard Sales Terms and all transactions between the Seller and the Buyer shall be governed by and construed and interpreted in accordance with the laws of the Republic of Ireland provided however that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

(2) If any of the provisions of these Standard Sales Terms or any agreement between the Seller and the Buyer is or becomes ineffective or void, all other provisions shall remain in full force and effect. The parties shall replace any such ineffective or void provision by an effective provision which shall be as close to the ineffective or void provision as may be reasonably possible


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