KABANA LIFESTYLE LIMITED
STANDARD CONDITIONS OF SALE
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 Seller;
CONDITIONS means the terms and conditions of sale set out in this document and any
special terms and conditions agreed in writing by the Seller;
CONTRACT means a contract between the Seller and the Buyer for the sale and
purchase of Goods in accordance with these Conditions;
DELIVERY DATE- means the date specified by the Seller when the Goods are to be
delivered, or the date on which delivery takes place, whichever is the later;
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 Seller;
SELLER means KABANA LIFESTYLE LIMITED, “Leeson” 7 Well Road, Douglas Cork.
Ireland, or any of the Sellers officially appointed agents.
- CONDITIONS APPLICABLE
2.1 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
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods
pursuant to these Conditions.
2.3 An acceptance of delivery of the Goods shall be deemed conclusive evidence of the
Buyer’s acceptance of these Conditions.
2.4 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
Seller. The Buyer acknowledges that it has not relied on any statement, promise or
representation made or given by or on behalf of the Seller which is not set out in the
2.5 Quotations issued in any format, by the Seller do not constitute an offer by the Seller
to supply the Goods referred to therein.
3.1 In such cases where the Goods are sold by reference to the Seller’s published price
list, the price payable for the Goods shall be the price stipulated in the Seller’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 Seller and the Buyer.
3.2 The Seller 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.
3.3 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.
3.4 All prices are quoted in Euros unless otherwise specified, and all payments must be
made in Euros unless otherwise agreed in writing by the Seller.
4.1 Delivery shall take place by such method as the Seller may in its absolute discretion
decide, to the location specified by the Buyer (the “Delivery Destination”), on or as close
to the Delivery Date as is reasonably practicable in all the circumstances. For the
avoidance of doubt, the Delivery Date is approximate only, and unless otherwise
expressly agreed in writing by the Seller, time is not of the essence for delivery.
4.2 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.
4.3 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.
4.4 The Buyer’s attention is drawn to the provisions in section 9 LIMITATION OF
LIABILITY as specified in special Condition 9.1.3.
4.5 If, for any reason, the Buyer fails to accept delivery of any of the Goods when they
are ready for delivery, or the Seller is unable to deliver the Goods on time because the
Buyer has not provided appropriate instructions, documents, licences or authorisations,
the Seller 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 Seller’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
4.6 Subject to the other provisions of these Conditions the Seller 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 Seller’s negligence), nor shall
any delay entitle the Buyer to terminate or rescind the Contract unless such delay
exceeds sixty (60) days.
5.1 Unless the Contract provides otherwise, subject to 5.3, payment of the price, VAT
and any other tax, duty, insurance, storage or delivery charges shall be completed on the
same day the goods are delivered after the initial deposit has been deducted from the
5.2 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.
5.3 All payments payable to the Seller under the Contract shall become due immediately
on acceptance of the goods.
5.4 Time for payment shall be of the essence.
5.5 The Buyer may not withhold payment of any invoice or monies due, other amount
due to the Seller by reason of any right of set-off or counterclaim which the Buyer may
have or allege to have or for any reason whatsoever.
- LATE PAYMENT
6.1 In the event that the Buyer fails to make payment of any invoice or balances due for
payment then the Seller shall be entitled to (without limitation):
6.1.1 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
6.1.2 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;
6.1.3 Suspend or cancel deliveries of any Goods due to the Buyer;
6.1.4 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 Seller may in its sole
discretion think fit;
6.2 For the avoidance of doubt, the rights and remedies of the Seller set forth hereto are
cumulative, not exclusive, and the exercise of one thereof shall not deprive the Seller of
the right to exercise others.
6.3 The Seller 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.
- RISK AND TITLE
7.1 Risk in the Goods shall pass to the Buyer:
7.1.1 Risk of loss shall pass to Buyer according to delivery terms specified in the Sale
Invoice ; or
7.1.2 If the Goods are kept at the Seller’s premises under the provisions of Condition 4.5,
or otherwise to the Seller’s order, upon collection of the Goods by the Buyer, or upon the
expiry of seven (7) days from the Seller’s written notice to the Buyer that the Goods are
ready for delivery, whichever is the earlier.
7.2 The Seller 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 Seller 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 Seller against any loss resulting from a failure to so comply.
7.3 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 Seller 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 Seller to the Buyer for which
payment is then due.
7.4 Until such time as title in the Goods passes to the Buyer:
7.4.1 The Buyer shall hold the Goods as the fiduciary agent and bailee of the Seller, 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 Seller and identified as the Seller’s property and shall not
destroy, deface or obscure any identifying mark or packaging on or related to the Goods;
7.4.2 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
Seller 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 Seller for the sole benefit of the Seller); and
7.4.3 provided that the Goods are still in existence and have not been sold by the Buyer
in accordance with Condition 7.4.2 hereto, the Seller shall be entitled at any time to
require the Buyer to deliver up the Goods to the Seller, 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.
7.5 Any Goods repossessed by the Seller may be resold on such terms as the Seller may
in its absolute discretion determine and the Buyer shall remain liable to the Seller for the
difference between the net proceeds of such resale and all outstanding sums due to the
Seller in respect of the Goods and for all costs and expenses incurred by the Seller in
repossessing, storing, insuring and re-selling the same.
7.6 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 Seller. Without prejudice
to the other rights of the Seller, in the event that the Buyer purports to do so then all
sums whatever owing to the Seller by the Buyer shall immediately become due and
7.7 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 Seller in
undertaking any extra work, requirement, modification, test or inspection.
7.8 Upon termination of the Contract, howsoever caused, the Seller’s (but not the
Buyer’s) rights contained in this Condition 7 shall remain in effect.
7.9 Except where, prior to shipment, Seller agrees in writing to accept return of the
Goods sold hereunder, Seller 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 Seller’s written approval. For approval
and issuance of Goods return instructions, Buyer should contact Seller. Buyer shall pay
all return shipping charges to the location designated by Seller. Buyer may not set off
from payments due to Seller any amounts for returns or expected returns except with
Seller’s written permission. Seller 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 Seller’s discretion.
8.1 Subject to the provisions of Condition 9 below, the Seller 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 manufacturers warranty is present on the goods seperately
8.2 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.
- LIMITATION OF LIABILITY
9.1 Without prejudice to the generality of Condition 8 above, the Seller shall be under no
liability to the Buyer:
9.1.1 In respect of any defect arising from wear and tear, wilful damage, negligence,
abnormal working conditions, a failure to follow the Seller’s instructions (whether oral or
in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
9.1.2 whatsoever in the event that the full price (including, without limitation, those
matters set out in Condition 7) for the Goods has not been paid by the due date for
9.1.3 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 Seller’s obligations in relation to the
Goods if the delay or failure was due to any cause beyond the Seller’s reasonable
control. Without prejudice to the generality of the foregoing, the following shall be
regarded as causes beyond the Seller’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 Seller or of a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery;
(g) power failure or breakdowns in equipment.
9.2 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 Seller in accordance with these Conditions then the Seller shall be entitled to fix or
replace the Goods (or the part in question) free or charge, or at the Seller’s sole
discretion refund to the Buyer the price of the Goods (or a proportionate part thereto), but
upon the Seller undertaking either of the steps in this Condition 9.2 the Seller 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
9.2. 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 Seller 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, Seller 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 Seller’s gross negligence, the
Seller 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 Seller, its employees or agents or
otherwise) which arise out of or in connection with the supply of the Goods.
9.3 Any claim (including any relating to the quality of the Goods) by Buyer arising out of
this Contract shall be provided to Seller 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 Seller. Buyer unconditionally waives any and all claims
that are not made during the requisite period required by this Contract and Seller shall
not be obliged to accept any such claims made after such period.
- INTELLECTUAL PROPERTY RIGHTS
10.1 As between the Buyer and the Seller, all intellectual property rights and all other
rights in the Goods and the Seller’s website shall be owned by the Seller, the Seller’s
agents, subcontractors, consultants and employees as appropriate.
10.2 The Buyer shall indemnify the Seller 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 Seller with the Buyer’s specific instructions relating to
the use of the Buyer’s intellectual property rights.
- DATA PROTECTION
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 Seller’s behalf in connection with the Goods.
- GENERAL PROVISIONS
12.1 Unless otherwise agreed by Seller and Buyer in writing, no Contract or work order
may be terminated by Buyer except by mutual agreement in writing.
12.2 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 Seller’s receipt of notice of termination; and (ii) Buyer will
pay all costs, direct and indirect, which have been incurred by Seller with regard to
Goods which have not been completely manufactured at the time of Seller’s receipt of
notice of termination, plus a pro rata portion of normal profit on the Contract.
- GENERAL PROVISIONS
13.1 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.
13.2 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.
13.3 No forbearance or indulgence by the Seller 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 Seller against the Buyer or be regarded as any waiver of any of these Conditions.
13.4 The Seller may cancel any Contract at any time before the Goods are delivered by
giving written notice. Upon giving such notice the Seller shall promptly repay to the Buyer
any sums paid in respect of the Goods. Without prejudice to the limitation of Condition 9
above, the Seller shall not be liable for any loss or damage whatever arising from any
cancellation in accordance with this Condition 13.4
13.5 The Seller reserves the right to sub-contract the whole or any part of the Contract.
13.6 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
13.7 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
14.1 At Buyer’s request, Seller (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”). Seller reserves the right to establish limits
on the total time allocated to Buyer for such Services. Where Buyer and Seller contract in
writing for additional or extended services, if any, those terms shall be controlling, within
the scope of those extended services described.
14.2 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 Seller shall have no
liability for Buyer’s use or non-use thereof and Seller makes no warranty, expressed or
implied, as to the services.
14.3 Any provision of the Contract notwithstanding, each of Seller 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.
14.4 When visiting each other’s premises, Buyer and Seller and their respective
personnel shall observe all rules or regulations that are in force on such premises. Buyer
shall inform Seller 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.