Terms & Conditions
KABANA LIFESTYLE LIMITED STANDARD CONDITIONS OF SALE
TERMS & CONDITIONS
- DEFINITIONS For the purposes of sales , each sale is bound
by the conditions as set out below.
BUYER means the person who buys or agrees to buy the Goods from the supplier.
CONDITIONS means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the supplier.
CONTRACT means a contract between the supplier and the buyer for the sale and purchase of goods in accordance with these Conditions.
DELIVERY DATE- means the date specified by the supplier when the goods are to be delivered, or the date on which delivery takes place, whichever is the later. However, the buyer is aware that delays are probable due to current global supply issues.
DELIVERY DESTINATION means the home of the buyer or a location further specified in a contract for the delivery of the goods ordered by the buyer under that contract.
GOODS means the articles which the buyer agrees to purchase from the supplier.
THE SUPPLIER means Red Qube Holdings Limited T/A Kabana Lifestyle, “The Bungalow, Kinsale Road, Ballycurreen, Cork, Ireland”, or any of the supplier’s officially appointed agents.
2.1 The price for the unit shall be set out on the order confirmation. The order confirmation is the sale agreed to once the quote is approved. In the events of any alterations required by the customer, subsequent to signing the final quote, in relation to specifications, quantity, place or date of delivery, the supplier may vary the price accordingly.
2.2 In such cases where the goods are sold by reference to the supplier’s published price list, the price payable for the Goods shall be the price stipulated in the supplier’s published price list current at the date of the contract, or the date on which the goods were ordered by the buyer (as applicable). Otherwise, the price payable for the goods shall be the price agreed upon between the supplier and the buyer.
2.3 The supplier reserves the right to increase from time to time the current price list without giving written notification to the buyer due to currency fluctuations in the global markets and /or any other specific market conditions.
2.4 The price quoted is given inclusive of VAT or any tax or duty relating to the specified product and / or service, but may exclude such ancillary costs of transport, delivery, assembly and commissioning of equipment.
2.5 All prices are quoted in Euros unless otherwise specified, and all payments must be made in Euros unless otherwise agreed in writing by the supplier.
3.1 The deposit of 50% of the price agreed on the order confirmation shall be paid before processing. The deposit is non-refundable. On receipt of the deposit and the signed order confirmation the supplier will take the steps to supply the goods ordered.
3.2 Any payments on account by the customer to the supplier may be set off by the supplier against any liability, costs or expenses incurred by the supplier in complying with the order confirmation in the event that the customer should breach the contract.
3.3 The deposit of 50% of the price stated on the order confirmation shall be paid with the delivery of the signed order confirmation. This is non-refundable. The other payment modalities may be confirmed on the order confirmation signed by the supplier.
3.4 The payment schedule will be dictated by the product ordered. 50% of the total price must be paid as a deposit in all cases.
With respect to units which must be assembled, a further instalment of 30% on the price may fall due for payment on the delivery day. All final balancing sums due shall be paid on practical completion of the building, that is following the erection of the floor, external walls and the roof, and if applicable and ordered. Insulation (if applicable) the provision of any plumbing and any electrical works, outside coating. The supplier may furnish the customer with a statement of account showing all monies received and all sums due on practical completion.
With respect to hot tubs, swim spas and saunas, it is agreed that the buyer will pay a deposit of 50% on placing an order for any specific product or service and the balance is paid on delivery of the goods to the buyers delivery destination as defined in definitions above. Payment is accepted by Credit Card, Bank Transfer or cash.
- LATE PAYMENT
4.1 In the event that the Buyer fails to make payment of any invoice or balances due for payment then the supplier shall be entitled to (without limitation).
4.1.1 Charge interest on such invoice from the date of the invoice until the date of payment of the invoice at a rate of 8% above the base rate from time to time in force at the European Central Bank and such interest shall accrue at such rate after as well as before judgment.
4.1.2 Charge additional interest in accordance with the provisions of the European Communities (Late Payment in Commercial Transactions) Regulations 2002 at such rates and for such times as may be permitted under these regulations.
4.1.3 Suspend or cancel deliveries of any Goods due to the Buyer.
4.1.4 Appropriate any payment made by the Buyer to such of the Goods (or any other Goods supplied under any other Contract with the Buyer) as the supplier may in its sole discretion think fit;
4.2 For the avoidance of doubt, the rights and remedies of the supplier set forth hereto are cumulative, not exclusive, and the exercise of one thereof shall not deprive the supplier of the right to exercise others.
4.3 The supplier shall be entitled to exercise the remedies in Condition 4 above notwithstanding that risk and / or title to the Goods may not have passed to the Buyer.
4.1 In the instance to which a refund is agreed between Kabana and the Consumer, a minimum of 28 days will be required to process the agreed refund.
4.2 In the instance to which a refund is agreed between Kabana and the Consumer, Kabana will deduct a cost-incurred fee of 10% of the total cost of the unit.
4.3 Any refund requested by the buyer as a result of actions by any third party, such as factory delays, will incur the 10% handling fee also.
4.4 As an alternative to paying the full cancellation fee, Kabana will do the best we can to sell your unit in 60 days from the date of the refund request. If Kabana can sell it, we will only charge you 5%. If Kabana cannot sell it, you will be liable for the full 10%.
5.1 The goods shall remain the property of the Kabana Lifestyle until all sums by the customer to the supplier are paid.
5.2 The supplier shall be entitled to repossess any building supplied to the customer in respect of which payment is overdue and thereafter to re-sell the same. For this purpose, the customer HEREBY GRANTS an irrevocable rights and license to the supplier or its agents to enter the property where the building is installed.
6.1 Delivery date stated on the order confirmation is intended as an estimate or guide only.
6.2 The supplier shall be not be liable to the customer for any third party loss, damage or alteration directly or indirectly or consequential to any property, undertaking or event caused by or arising from or connected with any delay in delivery of the goods or failing to execute an order or delivery or cancellation of the contract.
6.3 The customer will allow and/or procure sufficient access to and from the relevant site for the delivery of the goods. The customer will ensure that the site is cleared and prepared before the delivery is due to commence.
6.4 The supplier reserves the right for the delivery of the goods to the kerb-side only. In the case where supplier is unable to deliver the goods due to the poor access to the site the supplier reserves the right to deduct delivery cost from the deposit received and do not return with delivery until access to the site is available.
6.5 Costs of packaging and delivery shall be included in the price of the Goods, but may be subject to a charge for disposal and re cycling, once goods are delivered and fitted, unless otherwise stated and agreed in the Sale Invoice.
6.6 No delay in the delivery of the goods shall affect the price of the goods or entitle the buyer to reject any delivery or any further instalment or part of the order or any other order from the buyer or to repudiate the contract or the order.
The Buyer’s attention is drawn to the provisions in section 24 LIMITATION OF LIABILITY as specified in special Condition 9.1.3.
6.7 If, for any reason, the buyer fails to accept delivery of any of the goods when they are ready for delivery, or the supplier is unable to deliver the goods on time because the buyer has not provided appropriate instructions, documents, licences or authorisations, the supplier may store the goods until delivery, whereupon the buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). This provision is without prejudice to any of the supplier’s rights in relation to a failure by the buyer to take delivery of the goods or pay for them in accordance with the terms of the contract.
6.8 Subject to the other provisions of these Conditions the supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs damages, charges or expenses caused directly or indirectly by a delay in the delivery of the Goods (even if caused by the supplier’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds sixty (60) days.
7.1 The supplier warrants the fitness for the purpose, suitability and merchantability only of goods supplied by it to the supplier under the order confirmation subject to ordinary reasonable wear and tear for 2 years only from date of practical completion.
7.2 Relocation of the building supplied, unless under the supervision of or conducted by or with the written approval of the supplier, will void any warranty.
7.3 The supplier shall not be liable for any damage or other adverse consequence to the goods supplied and sold to the customer caused directly or indirectly by any failure or default or neglect on the part of the customer to properly maintain them and to comply with the supplier’s maintenance instructions. Changes or alterations to parts or components unless approved or performed by the supplier or his agents are at the customer’s risk.
7.4 The supplier warrants that the Goods will correspond with their specification at the time of delivery and will be free from defect in both materials and workmanship for a period of twelve (12) months from the delivery date. A manufacturer’s warranty is present on the goods separately
7.5 Except where the Buyer is dealing as a consumer (within the meaning of section 3(1) of the Sale of Goods and Supply of Services Act 1980 (the “1980 Act”)), all other warranties, conditions or terms relating to the fitness for purpose, quality or condition of the Goods (including but not limited to sections 13, 14 and 15 of the Sale of Goods Act 1893 (as amended by section 10 of the 1980 Act)), whether express or implied by statute, common law or otherwise, are excluded to the fullest extent permitted by law.
7.6 The supplier offers the following product-dependant warranties:
- Cabins- 24 months
- Cubes- 24 months
- Gazebos- 24 months
- Saunas- 12 months
- Artent Products- 5 years
- Hot Tubs & Swim Spas- 2 years on equipment/ 5 years on surface/ 10 years on structure
8.1 The supplier requires that the building be sealed with outdoor silicon (all horizontal and vertical joint areas) & treated with quality wood treatment of customers choice in accordance with the application instructions for the product within 4 weeks of final completion of the building and thereafter according to the recommendations of the product manufacture.
8.2 In respect of hot tubs and swim spas, the supplier will supply the buyer with a manual detailing maintenance of these. The buyer will also be given instruction on the maintenance of the hot tub or swim spa by the production team on commission. Tutorials on maintenance and proper functioning of the hot tub or swim spa will also be made available to the buyer on the supplier’s website.
9.1 The supplier shall not be liable to the customer or any third party for loss, damage or alteration weather direct or indirect or consequential to any property, undertaking or event caused by or arising from or connected with delay in delivery of goods or failure to execute an order or delivery or cancellation of the contract pursuant.
9.2 Failure on the part of the customer to ensure all preparations completed for installation and operation for the agreed time and date can result in the deduction of the delivery cost from the deposit received.
9.3 The supplier or his agents will not be held liable for any damages or injuries to goods, property or personnel arising from inadequate site preparation on the part of the customer or his agent.
10.1 It is the customer’s responsibility to obtain all permissions and consents, including all local authority planning permissions or any certificates or authorizations under any bye-laws or regulations if applicable.
10.2 Where the supplier authorizes access through adjacent properties for the supplier’s use during delivery and or installation, the customer is required to obtain permission from the owners of the adjacent property for such use and the customer agrees to be responsible and accept the risk and liability thereof.
- Additional Works
11.1 The supplier shall provide any extra works required in line with suppliers specifications appropriate to the goods purchased by the customer at the extra price agreed.
11.2 If extra works such as electricals and/or plumbing are undertaken by third parties which are not to the supplier’s specifications, the supplier will not be responsible for any damage or alterations done during or any loss caused by fittings of electricals and/or plumbing the supplier does not guarantee such work.
11.3 If a base or foundation is ordered, the supplier shall provide a referral list of suitable contractors to quote for the construction of a base suitable for the size of the building and guarantee such work for a period of 12 months from when the building is officially commissioned and signed over to the customer. If the customer does not require a base or foundation from the supplier recommended contractor list, the buyer accepts that any base constructed by the third party is a matter between the third party and the customer and holds the supplier free from liability for any adverse consequence arising. In particular, if the base is not built to the specifications of the supplier, the supplier will not be responsible for defects caused to the goods supplied and the building by the third party foundation.
- 1 Referrals to third party contractors by the supplier to the customer are given as a professional courtesy only. The supplier is not responsible for any subsequent conduct or services provided by referrals.
13.1 Supplier does not accept any returns.
- Lead Time
14.1 The supplier indicates lead time of 12 t0 16 weeks subject to product type and availability.
- Cabin Storage
15.1 The buyer will be notified within approximately a week before cabin is delivered to the supplier warehouse. It is the client’s responsibility to have site ready for cabin to be delivered within the week from the notification. Cabins can be stored for the delayed delivery for an additional charge of €100 per week for cabins under 25 sq meters and €150 for cabins over the 25 sq meters.
- Foundation Pricing
16.1 If the buyer has purchased a timber frame building only from the supplier and elects to use a contractor not on our recommended list the client guarantees that the site is level and stable. If builders will identify otherwise client might be liable for an extra charge to be agreed with the client prior to remedial works for foundation works or refusal of foundation works and client would need to organise the foundation themselves.
17.1 Please note our final clearance dimensions can change when we internally insulate the exterior walls thus reducing the overall internal area. It’s best to field measure after installation.
17.2 The buyer might need to adjust their doors & windows during the warranty period. Window and door adjustment is included in warranty for 3 months from the day the project is completed. Our windows and doors adjustment is very simple and easy to do for anyone. You will be provided with information regarding the window and door adjusting by or staff in standard completion list at the end of the build.
17.3 The supplier shall not be liable for any damage or other adverse consequence to the goods supplied and sold to the customer caused directly or indirectly by any failure or default or neglect on the part of the customer to properly maintain them and to comply with the supplier’s maintenance. All windows and doors warranty as stated by manufacturers.
17.4 Storm damage – The buyer will be required to have their building named on their house insurance as supplier does NOT cover storm damage as part of the supplier guarantee. In the event of storm damage the supplier will not be liable to repair or replace any components or part of the building. Changes or alterations to parts or components unless approved or performed by the supplier or his agents are at the customers risk.
- Changesor alterations
18.1 Changes or alterations to parts or components unless approved or performed by the supplier or his agents are at the customer’s risk.
- Completion List
19.1 The buyer will sign off the standard completion list at the end of the build.
- Product Finishing
20.1 All buildings are pre-finished products. Sanding, filling, painting and sealing is required.
The supplier requires that the building is to be treated, painted inside and outside all timber parts and sealed with outdoor silicon (all horizontal and vertical external joint areas) with quality wood treatment of customer’s choice in accordance with the application instructions for the product within 14 days of final completion of the building and thereafter according to the recommendations of the product manufacture. All paints must be breathable and water based to let the timber breath. All windows and doors must be opened periodically for ventilation or alternatively have the vents installed in each room.
21.1 The supplier shall not be liable to the customer or any third party for loss, damage or alterations whether direct or indirect or consequential to any undertaking or event caused by or arising from or connected with delay in delivery of goods or failure to execute an order or delivery or cancellation of the contract pursuant.
- Conditions Applicable
22.1 These Conditions shall apply to all sale contracts to the exclusion of all other terms and conditions including any terms or conditions, or implied verbal agreement, which the buyer may purport to apply under any purchase order, confirmation of order, or similar document.
22.2 All orders for goods shall be deemed to be an offer by the buyer to purchase goods pursuant to these Conditions.
22.3 An acceptance of delivery of the Goods shall be deemed conclusive evidence of the buyer’s acceptance of these Conditions.
22.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless expressly agreed in writing by the supplier. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the supplier which is not set out in the Contract.
22.5 Quotations issued in any format, by the supplier do not constitute an offer by the supplier to supply the Goods referred to therein.
- RISK AND TITLE
23.1 Risk in the goods shall pass to the buyer.
23.1.1 Risk of loss shall pass to buyer according to delivery terms specified in the sale invoice ; or
23.1.2 If the goods are kept at the supplier’s premise, or otherwise to the supplier’s order, upon collection of the goods by the buyer, or upon the expiry of seven (7) days from the supplier’s written notice to the buyer that the goods are ready for delivery, whichever is the earlier.
23.2 The supplier accepts no responsibility for any loss, damage or shortage which may occur to the goods in transit after risk has passed to the buyer, and in the event that the buyer has a claim arising in respect of any such loss, damage or shortage, then such claim should be notified to both the supplier and the carrier as soon as is reasonably practicable. The buyer undertakes in such circumstances to comply in full with the carrier’s standard conditions for claims for damage, shortage or loss in transit, and agrees to indemnify the supplier against any loss resulting from a failure to so comply.
23.3 Notwithstanding that delivery may have taken place and / or risk in the Goods may have passed to the Buyer, title to the Goods shall not pass to the Buyer until such time as the supplier has received in cash or other cleared funds full payment of the price of the goods and all other goods agreed to be sold by the supplier to the Buyer for which payment is then due.
23.4 Until such time as title in the Goods passes to the Buyer:
23.4.1 The Buyer shall hold the Goods as the fiduciary agent and bailee of the supplier, and shall keep the Goods separate from those of the Buyer and third parties, and shall keep the Goods properly stored, protected and insured against all normal risks, to the reasonable satisfaction of the supplier and identified as the supplier’s property and shall not destroy, deface or obscure any identifying mark or packaging on or related to the Goods;
23.4.2 The Buyer shall be entitled to use the Goods in the ordinary course of its activities or business (save that such entitlement may be terminated forthwith by notice from the supplier to the Buyer, and shall automatically terminate without notice in the event that a receiver or examiner is appointed over any of the assets or the undertaking of the Buyer, or a winding up order is made against the Buyer, or the Buyer goes into voluntary liquidation (other than for the purpose of a Personal Insolvency Arrangement ( PIA ) or calls a meeting or makes any arrangement or composition with its creditors or any act analogous to the foregoing in any jurisdiction, and in the event of a liquidator or receiver being appointed then they shall pay into a separate bank account any sums received from third parties in respect of the sales to them of Goods by the Buyer up to the amount of any indebtedness of the Buyer to the supplier for the sole benefit of the supplier); and
23.4.3 provided that the Goods are still in existence and have not been sold by the Buyer in accordance with Condition 23.4.2 hereto, the supplier shall be entitled at any time to require the Buyer to deliver up the Goods to the supplier, and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
23.5 Any Goods repossessed by the supplier may be resold on such terms as the supplier may in its absolute discretion determine and the Buyer shall remain liable to the supplier for the difference between the net proceeds of such resale and all outstanding sums due to the supplier in respect of the Goods and for all costs and expenses incurred by the supplier in repossessing, storing, insuring and re-selling the same.
23.6 The Buyer shall not pledge in any way, charge by way of security for any indebtedness any of the Goods which remain the property of the supplier. Without prejudice to the other rights of the supplier, in the event that the Buyer purports to do so then all sums whatever owing to the The supplier by the Buyer shall immediately become due and payable.
23.7 The provisions of these Conditions relating to payment for the Goods shall apply equally (and without limitation) to payment for fees or charges incurred by the supplier in undertaking any extra work, requirement, modification, test or inspection.
23.8 Upon termination of the Contract, howsoever caused, the supplier’s (but not the Buyer’s) rights contained in this Condition 23 shall remain in effect.
23.9 Except where, prior to shipment, The supplier agrees in writing to accept return of the goods sold hereunder, the supplier reserves the right to decline at its sole discretion requests from Buyer to return quantities of the Goods ordered but not utilized by Buyer for any reason. No returns may be made without The supplier’s written approval. For approval and issuance of Goods return instructions, Buyer should contact The supplier. Buyer shall pay all return shipping charges to the location designated by The supplier. Buyer may not set off from payments due to The supplier any amounts for returns or expected returns except with the supplier’s written permission. The supplier shall not be obligated to issue any payments or credits for returned amounts where Buyer is in default of any of its payment obligations. Restocking fees may be charged at The supplier’s discretion.
- LIMITATION OF LIABILITY
24.1 Without prejudice to the generality of Condition 8 above, the supplier shall be under no liability to the Buyer:
24.1.1 In respect of any defect arising from wear and tear, wilful damage, negligence, abnormal working conditions, a failure to follow the supplier’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the supplier’s approval;
24.1.2 whatsoever in the event that the full price (including, without limitation, those matters set out in Condition 23) for the Goods has not been paid by the due date for payment;
24.1.3 or otherwise be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of the supplier’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the supplier’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the supplier’s reasonable control:
(a) Act of God, Viral Epidemic / Pandemic, explosion, flood, tempest, fire or accident;
(b) war or threat or war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the supplier or of a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery;
(g) power failure or breakdowns in equipment.
24.2 Where any valid claim in respect of any of the Goods is based on any defect in the quality or condition of the Goods or their failure to meet their specification is notified to the supplier in accordance with these Conditions then the supplier shall be entitled to fix or replace the Goods (or the part in question) free or charge, or at the supplier’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part thereto), but upon the supplier undertaking either of the steps in this Condition 9.2 The supplier shall have no further liability to the Buyer. In any event, and notwithstanding anything else to the contrary, Buyer shall not be entitled to any additional amounts or any other reimbursement, except as explicitly set forth in the preceding sentence of this Condition 24.2. For the removal of doubt, Buyer shall not be entitled to any reimbursement due to defect in the quality or condition of the Goods or their failure to meet their specification, unless the supplier was notified of such defect and decided, at its sole discretion, not to replace the Goods (or any applicable component thereof) with conforming Goods or components. Notwithstanding anything else to the contrary in these Conditions, The supplier shall not be under any obligation to fix or replace the Goods, or refund the price of such Goods, unless (i) it was notified of the defect in the quality or condition of the Goods or their failure to meet their specification, and (ii) it had the opportunity to inspect the Goods within a reasonable time after it was notified of the defect/non-conformity of the Goods. Except in respect of death or personal injury caused by the supplier’s gross negligence, the supplier shall not be liable to the Buyer by reason of any representation (unless fraudulent),or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the supplier, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods.
24.3 Any claim (including any relating to the quality of the Goods) by Buyer arising out of this Contract shall be provided to The supplier by written notice setting forth fully the facts on which it is based immediately after the date when the facts were discovered or reasonably should have been discovered, but in any event no later than 90 days after the date the Goods were delivered by The supplier. Buyer unconditionally waives any and all claims that are not made during the requisite period required by this Contract and The supplier shall not be obliged to accept any such claims made after such period.
- INTELLECTUAL PROPERTY RIGHTS
25.1 As between the Buyer and the supplier, all intellectual property rights and all other rights in the Goods and the supplier’s website shall be owned by the supplier, the supplier’s agents, subcontractors, consultants and employees as appropriate.
25.2 The Buyer shall indemnify the supplier on a full indemnity basis against any and all actions, costs (including, without limitation, the costs of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement of any patent, registered design, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the supplier with the Buyer’s specific instructions relating to the use of the Buyer’s intellectual property rights.
- DATA PROTECTION
26.1 The Buyer acknowledges and agrees that details of the Buyer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on the supplier’s behalf in connection with the Goods.
- GENERAL PROVISIONS
27.1 Unless otherwise agreed by The supplier and Buyer in writing, no Contract or work order may be terminated by Buyer except by mutual agreement in writing.
27.2 Termination of a Contract or a work order is subject to the following conditions:
(i) Buyer will pay for all undelivered Goods which are completely manufactured and allocable to Buyer at the time of The supplier’s receipt of notice of termination; and (ii) Buyer will pay all costs, direct and indirect, which have been incurred by The supplier with regard to Goods which have not been completely manufactured at the time of The supplier’s receipt of notice of termination, plus a pro rata portion of normal profit on the Contract.
- GENERAL PROVISIONS
28.1 These Conditions shall be governed by and construed in accordance with Irish law and the parties hereby submit to the non-exclusive jurisdiction of the Irish Courts.
28.2 Any dispute, controversy or claim arising out of or in connection with the Contract whether in tort, contract, under statute or otherwise, including any question regarding its existence, validity, interpretation, breach or termination of the Contract shall be settled by consultation between the Parties. In the event of failure of such consultations within 60 days (unless otherwise extended by mutual agreement) after receipt by the respondent Party of the written notice of such matter, then the matter shall be finally and exclusively resolved by arbitration under the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) in force as at the date of the Contract (“Rules”), which Rules are deemed to be incorporated by reference into the Contract. The Tribunal shall consist of one arbitrator, to be appointed in accordance with the Rules. The seat of the arbitration shall be Cork, Ireland. The language of the arbitration shall be English. The appointing authority shall be the President of the Law Society of Ireland. The matter and decision shall be governed by the substantive law referred to in the preceding paragraph. The arbitrator shall set forth the reasons for the award in writing. Where necessary, the decision in arbitration may be enforced by any court having jurisdiction.
28.3 No forbearance or indulgence by the supplier shown or granted to the Buyer whether in respect of these Conditions or otherwise shall in any way affect or prejudice the rights of the supplier against the Buyer or be regarded as any waiver of any of these Conditions.
28.4 The supplier may cancel any Contract at any time before the Goods are delivered by giving written notice. Upon giving such notice the supplier shall promptly repay to the Buyer any sums paid in respect of the Goods. Without prejudice to the limitation of Condition 24 above, the supplier shall not be liable for any loss or damage whatever arising from any cancellation in accordance with this Condition 28.4.
28.5 The supplier reserves the right to sub-contract the whole or any part of the Contract.
28.6 Any provision of these Conditions or any Contract which is, or may be, void or unenforceable shall, to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision the Contract. If any court or competent authority finds any provision of these Conditions unenforceable because of the breadth of area, subject or time to which it applies, the parties agree that the provision shall be enforced to the fullest extent permissible by law of the jurisdiction where enforcement is sought.
28.7 Any notice under or in connection with these Conditions or any Contract shall be in writing and shall be served by registered post or by hand on the party to the address of the party set out in the Contract or at such other address as may subsequently be notified by one party to the other, and in the absence of any evidence of earlier receipt any notice shall be deemed to have been received: (i) if delivered by hand when left at the address for service; or (ii) if sent by registered post, on the second day after posting.
- TECHNICAL ADVICE OR OBSERVATION
29.1 At Buyer’s request, The supplier (or representative it may designate) may provide certain limited observation and/or technical advice associated with the sale and/or use of the Goods sold under this Contract (“Services”). The supplier reserves the right to establish limits on the total time allocated to Buyer for such Services. Where Buyer and The supplier contract in writing for additional or extended services, if any, those terms shall be controlling, within the scope of those extended services described.
29.2 Services are offered in an advisory capacity only, and Buyer assumes full responsibility for its use or non-use of such Services and agrees that The supplier shall have no liability for Buyer’s use or non-use thereof and The supplier makes no warranty, expressed or implied, as to the services.
29.3 Any provision of the Contract notwithstanding, each of The supplier and Buyer, (in each case an “Indemnifying Party”) shall indemnify and defend the other Party and shall be responsible for all losses, damages, claims, liabilities (including solicitor’s fees),demands, penalties and interest (“Claims”) arising out of Services, where also arising out of (i) injury, disease, or death of the Indemnifying Party’s own employees, or (ii) loss of or damage to the Indemnifying Party’s own property, even if (i) or (ii) above is caused in whole or in part by the negligence of an indemnified party or their employees or agents.
29.4 When visiting each other’s premises, Buyer and The supplier and their respective personnel shall observe all rules or regulations that are in force on such premises. Buyer shall inform The supplier of hazards, reasonably associated with the provision of the Services. A Party may keep or withdraw its personnel from any site of the other Party without any liability for delay or otherwise if, in the opinion of the first Party, that site represents a danger to the safety of its personnel.