These terms and conditions (“Terms and Conditions”) herein written complement the specific conditions agreed between buyer and seller in any order and, in the view of the foregoing, shall govern the sale of products and the services provided to buyer ("Buyer”) and shall supersede all previous communications, agreements or contracts, and no term, condition or trade custom in conflict or inconsistent herewith shall be binding upon seller ("Seller") unless agreed to in a signed writing. They can be downloaded from www.stonhard.ie. A copy will be attached to the order. Customer terms and conditions are explicitly rejected.
All orders including change orders are subject to acceptance within reasonable time by Seller in the form of a written acknowledgment from Seller or commencement of performance. Seller’s failure to enforce any right it may have under the Terms and Conditions shall not be construed as a waiver thereof, nor shall such failure or failures be deemed to establish any custom, usage, course of dealing or course of performance. The failure of Seller to exercise any rights resulting from Buyer’s default or otherwise shall not be deemed a waiver of such right or any other right.
These Terms and Conditions may be enforced at any time, in whole or in part. Any provision hereof which is prohibited or unenforceable in any applicable jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions or affecting the validity or enforceability in any other jurisdiction.
Any advice, recommendation, information, assistance or service provided by Seller in relation to the Products or Services or in respect of their use or application is given in good faith, shall be deemed accepted by Buyer without imputation of any liability to Seller, and it shall be the responsibility of Buyer to confirm the accuracy and reliability of the same in light of the use of which Buyer makes or intends to make of the Goods and Services. Providing this limited service, does not change the nature of the transaction.
Seller may assign, mortgage, subcontract, charge, declare trust over or deal in any other manner with any or all rights under these Terms and Conditions.
Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare trust over or deal in any other manner with any of its rights under these Terms and Conditions without prior written approval from Seller, which shall not be refused without good cause.
These Terms and Conditions apply to the exclusion of any other terms that Buyer seeks to impose or incorporate, or which are implied by law, trade, custom, practice or course of dealing.
Services and Products may require full or partial payment in advance or upon rendering or delivery, may require other security for payment or performance, or may impose such other credit or payment terms as Seller deems appropriate in its sole discretion.
Seller is entitled to increase the price of the products and Services still to be delivered if the costs price determining factors have been subject to an increase. These factors include but are not limited to: raw and auxiliary materials, energy, products obtained by Seller from third parties, exchange rates, wages, salaries, social security contributions, governmental charges, freight costs and insurance premiums. Seller shall notify Buyer of such increase which shall not exceed the increase in the determining costs factors.
All Prices are exclusive of value added tax and all other taxes
Invoices are due for payment 30 days after date of invoice unless otherwise specified.
Sums not paid when due shall accrue interest each day at the local commercial rate for unpaid commercial debts as transposed in local law following directive 2011/7/EU and will in no case be lower than 4% a year above the European Central Bank's base rate from time to time, but at 4% a year for any period when that base rate is below 0%. Buyer may not withhold or set-off payment for products delivered for any reason whatsoever. Any debt recovery costs will be at the expense of the Seller with a minimum of 40,00 euro except as stated otherwise in applicable law.
Seller reserves the right, among other remedies, either to terminate or dissolve the sale or to suspend future deliveries upon failure of Buyer to make any payment pursuant to these Terms and Conditions or any other contract between the parties hereto. Buyer shall reimburse Seller in full for all damages, costs and expenses, including reasonable legal fees, which Seller incurs with respect to Buyer’s breach of these Terms and Conditions or any collection efforts by Seller to recover past due amounts from Buyer.
3. Risk and Preservation Obligations:
The risk in the Products and Services shall pass to Buyer at the moment the rendition of the Services is completed.
If applicable, credit terms are subject to Seller’s continuing approval of Buyer’s credit, and if, in Seller’s sole judgment, Buyer’s credit or financial standing is impaired so as to cause Seller to deem Buyer insecure, Seller may withdraw the extension of credit and require other payment terms and any amount outstanding on Buyer’s credit shall become immediately due and payable in full. Buyer agrees to submit such financial information, from time to time, as may be reasonably requested by Seller for the establishment and/or continuation of credit terms.
Any request to change any order with respect to Services or the quantity or packaging of Products must be communicated in writing prior to the delivery date of the services. If such changes result in increased cost or time to complete the manufacture of the product(s) or if there is a decrease in the quantity of Products or Services requested which invalidates the price or any discounts offered by Seller, then the price and timing of the original order shall be adjusted accordingly.
Buyer agrees to pay any increased costs associated with the changes.
Once orders have been accepted by Seller, no changes with respect to specifications will be made or allowed unless they are requested and accepted in writing and the resulting new price and delivery time are agreed upon by both Parties in writing.
Additional costs for changes, including any costs for additional engineering, materials, or services will be reflected in the new price.
Cancellations are subject to Seller’s agreement and reasonable cancellation charges which are determined in the sole discretion of the Seller.
Services shall be described in a Statement Of Work or other written agreement between the Parties. Nothing herein shall be construed to create an employee, agent, distributor, partner, fiduciary, or joint venture relationship between the Parties.
Buyer is responsible for determining that the scope of Services is appropriate for Buyer’s needs and shall cooperate with Seller and/or its subcontractors in the performance of the Services. Seller may rely on information and data provided by Buyer, or on behalf of Buyer, without audit or verification. Seller’s performance is dependent on Buyer’s timely decisions and approvals and Seller shall not be liable for any delay in the provision of Services due to Buyer’s failure to timely respond. Buyer hereby grants Seller and/or subcontractor permission to enter the service location to perform the Services.
Buyer agrees to provide conditions conducive to high-quality resinous installations including but not limited to; reasonable access to areas necessary for a visual inspection of the service location and for Seller and/or subcontractor to perform the Services, surfaces clean and clear from equipment and articles preventing installation, storage of materials in a location consistent with Seller recommendations (between 16-30oC in a dry area, avoiding excessive heat and not in freezing conditions, ambient air and surface temperatures between 16-30oC and at least 3 oC above the dew point), finished lighting to allow for execution of services, and adequate power supply.
In the event that concealed conditions are revealed which would materially change the nature of the Services, Seller and/or subcontractor is entitled to cease its performance until such time as the Parties have agreed on the costs of such material change. Unless otherwise agreed to in writing, Seller is not responsible for any repair or maintenance upon completion of the Services. Upon completion of the Services Seller and/or subcontractor shall make all necessary arrangements to have any excess Products or material removed. Buyer agrees to store excess products, materials, and/or waste on their property according to the conditions set forth above until transport is arranged by Seller for their removal. All leftover products and materials remain property of the Seller.
Any applicable field service, technical support, installation supervision, or related service shall be governed by a separate written agreement.
Absent a separate written agreement, any advice, recommendation, information, assistance or service provided by Seller in relation to the Products or in respect of their use or application is given in good faith, shall be deemed accepted by Buyer without imputation of any liability to Seller, and it shall be the responsibility of Buyer to confirm the accuracy and reliability of the same in light of the use of which Buyer makes or intends to make of the Goods.
All dates given by Seller or specified by Buyer for Services are intended for planning and estimating purposes only and are not contractually binding. Notwithstanding the foregoing, Seller will use reasonable efforts to perform the Services in accordance with any timetable and specifications referred to in the Statement Of Work or otherwise specified by the Parties in writing.
9. Cancellation of Services
Cancellation of Services may result in a cancellation fee as set forth in the applicable Statement Of Work or other written agreement between the Parties.
10. Effect of Default on Services
In the event Buyer defaults on any of its obligations in these Terms and Conditions or in any other written agreement between the Parties related to Services, Seller shall have the right to stop work and invoice Buyer for any work rendered up to the date of stoppage and for Products and materials shipped to the service location.
Seller warrants that it shall perform the Services in good faith and with due professional care. Seller disclaims all other warranties related to the Services, express or implied.
Insofar as nothing is stipulated to the contrary in this Section 12, claims of the Buyer based on material defects or defects in title - for whatever legal reason - are hereby excluded if permitted by applicable law. The Seller is not liable for any damage which has not occurred to the delivered Products themselves. In particular, the Seller is not liable for loss of profits or other pecuniary loss suffered by the Buyer in this respect.
Insofar as nothing is stipulated to the contrary in this Section 12, claims of the Buyer due to breach of an obligation arising from contractual obligations are hereby excluded.
The foregoing no-liability declarations in this Section 12 do not apply in circumstances where the Seller is compulsorily liable as a matter of applicable law, for example (1) pursuant to the applicable Product Liability Act, (2) due to loss of life, personal injury or damage to health which is attributable to a negligent or intentional breach of obligation by the Seller or one of the Seller’s legal representatives or vicarious agents, (3) if the cause of damage or loss was due to intentional behaviour or gross negligence by the Seller or one of the Seller’s legal representatives or vicarious agents, (4) if the Buyer asserts rights based on a defect arising from a guarantee regarding the product qualities or the particular duration of a product quality, (5) the Seller negligently breaches a fundamental contractual obligation whose fulfilment is what makes the due performance of the contract possible at all and whose fulfilment may be usually relied upon by the contract partner (cardinal obligation), (6) recourse claims in the consumer goods purchase delivery chain are involved.
If the Seller negligently breaches a cardinal (essential) obligation, its obligation to pay damages is limited to the contract-typical, foreseeable loss, if no intentional or grossly negligent behaviour is involved, and/or the Seller is not liable due to loss of life, personal injury or damage to health.
If the Seller has effected a partial delivery, the Buyer can only rescind the entire contract if it no longer has an interest in the part-performance. For successive delivery contracts, the Buyer’s rights are limited to each respective partial delivery.
In the case of the elimination of a defect or replacement delivery (subsequent performance), this Section 12 applies correspondingly.
The Seller can refuse to carry out the elimination of defects, as long as the Buyer has not paid for the portion of the delivery which has not been objected to.
SELLER SHALL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMERS OR ANY PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES (INCLUDING, WITHOUT, LIMITATION LOST PROFITS OR BUSINESS INTERRUPTION LOSSES) AS A RESULT OF SUPPLYING PRODUCT TO CUSTOMERS OR OTHERS AND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE.
NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE SELLER’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FRAUD OR FRAUDULENT MISREPRESENTATION. OTHERWISE, SELLER’S EXCLUSIVE LIABILITY AND BUYER'S SOLE REMEDY IN THE EVENT OF A NON-CONFORMING PRODUCT SHALL BE REPLACEMENT OF THE DEFECTIVE PRODUCT WITH CONFORMING PRODUCT. IN NO EVENT SHALL SELLER’S TOTAL LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCT AT ISSUE.
Buyer agrees that in the performance of any Services by Seller and/or subcontractor, Seller and/or any subcontractor shall not be liable to Buyer for any claim in excess of the amounts paid by Buyer to Seller for the Services. To the fullest extent possible under applicable law, no Seller affiliate will have any liability to Buyer and Buyer will not bring any claim against any affiliate in any way in respect of, or in connection with, the Services rendered. All Seller affiliates are hereby intended third-party beneficiaries. Any complaints with respect to non-performance in the provision of Services shall be brought forward by Buyer in a timely fashion.
For the avoidance of any doubt, any limitation of liability shall be within the limits permissible by law.
No dispute, claim or other legal action, regardless of form, may be brought by Buyer for any breach by Seller or any other claim relating to or arising out of the Product or Services, including negligence or any other tort-based claims, after one year from the date of delivery of the Product or rendition of the Services, unless otherwise agreed to in a signed writing by both Parties or by mandatory applicable law.
No party shall be liable for any failure or delay in performance with respect to delivery or otherwise, if such failure or delay is due to an act of God as defined by the applicable law and in the following (not limited) cases: war, civil disturbance, riot, labour difficulties, factory capacity, fire, other casualty, accident, inability to obtain containers or raw materials, supply chain failure or inability to perform, governmental acts or restrictions, including shutdowns and inability to perform due to epidemics, pandemics, or any other cause of any kind whatsoever beyond the reasonable control of a Party. In case of Force Majeure the Seller shall have the right to dissolve the agreement(s) by sending a written confirmation to the Buyer. The contract will be automatically suspended without compensation of any kind, from the date of occurrence of the event of Force Majeure to the date of its end.
Seller shall have the right at its option and without liability to apportion its supply of product among its customers, including its affiliated divisions and companies, in such a manner as Seller, in its sole discretion, believes equitable.
In no event shall Seller be obligated to purchase products or services from others in order to enable it to deliver products or services to Buyer.
Force Majeure will never apply to any payment obligation as far as products or services (or part of them) have been delivered.
Buyer shall indemnify and hold harmless Seller for any and all losses incurred in connection with any third-party claim related to the Services, except to the extent judicially determined to have resulted from the gross negligence or willful misconduct of Seller.
16. Governing Law and Jurisdiction:
All sales are governed by the law of the registered office of the Seller without regard to principles of conflicts of law, and excluded the United Nations Convention on Contracts for the International Sale of Goods (CISG or Vienna Convention).
Any action, dispute, claim or other will be exclusively brought before the courts competent for the registered office of the Seller (exclusive jurisdiction).
17. Compliance with Applicable Law:
Buyer shall comply with all applicable laws and regulations
18. Compliance with Applicable Policies:
Seller, as part of RPM International Group (RPM), is bound to RPM policies. As such, Buyer shall comply with all applicable Seller policies including but not limited to Seller’s Values & Expectations of 168 which can be accessed at the following URL https://www.rpminc.com/pdf/CodeGuidelines.pdf and Seller’s Distributor and Applicator Code of Conduct which can be accessed at the following URL https://www.rpminc.com/distributors-and-applicators-code-of-conduct/.
Nothing in these Terms and Conditions is intended or shall be construed to grant any license or other permission by Seller to Buyer to use any trademarks, trade names, copyrighted materials, patents or other intellectual property rights or interest of Seller at any time.
In the event the Parties have entered into a separate License Agreement, that agreement is hereby incorporated by reference and made part hereof, to the extent applicable. If any inconsistency shall exist between these Terms and Conditions and the separate License Agreement, the terms of the License Agreement shall prevail.
Each party shall process, apply, view and use Personal Data only to the extent necessary to perform the agreement under these Terms and Conditions. Neither party shall transfer or otherwise allow the use of Personal Data of the other party unless expressly instructed or authorized by the other party. Both parties shall comply with applicable laws and best practices relating to data privacy and data security. Sellers Privacy Policy can be found on https://www.rpminc.com/privacy-policy/.
Buyer has the right to access his data for the purpose of correction, integration and/or cancellation in accordance with the applicable laws on the subject and the General Data Protection Regulation (EU 2016/679). Any such request can be done at dataprotection@rpminc.com.
These Terms and Conditions represent the entire agreement between the parties hereto, and there are no understandings, representations, or warranties of any kind except those expressly set forth herein or in contractual documentations.