Terms & Conditions
1. Objects
1. These terms and conditions of sale (hereinafter "GT&C’s") govern the sale and supply of all goods and/or services (goods and services herein severally and jointly as "Products") and the assembly and installation of the Products ("Services") by KOMPAN IRELAND (hereinafter "Seller") to the customer ("Customer") and shall apply to any relationship between the Seller and the Customer. 2. A legally binding contract ("Contract") shall not come into force between the Seller and the Customer until the period of FIVE (5) BUSINESS DAYS provided for in clause 2.3 has expired and the Seller has not received a notice of withdrawal/rejection from the Customer. If, within FIVE (5) BUSINESS DAYS as of the date of the Order Confirmation the Seller does not receive a rejection of the Order Confirmation, the Customer shall be deemed to have unconditionally accepted the Order Confirmation and these GT&C’S. Unless expressly agreed in writing by the Seller, these GT&C’S apply to any relationship between the Seller and the Customer to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or the course of dealing. 3. Any purchase order issued by the Customer to the Seller shall be subject to the present GT&C’S and the Customer accepts the applicability of these GT&C’S to future supplies of Products or Services, even if this is not expressly stated in the further dealings. The Seller may update and/or modify these GT&C’S regularly and, following notice to the Customer of any update or modification, or after sending the Customer the updated or modified GT&C’S, such revised GT&C’S will be applicable to any subsequent business between Seller and Customer. In case of conflict between the provisions contained in the Order Confirmation and those from the present GT&C’S, the Order Confirmation shall prevail.
2 Request for Services
4. Notwithstanding any express indication to the contrary, the Customer is obliged to send the Seller a request for the Services and/or Products (hereinafter, " Order") by ordinary post, fax and/or email. 5. For the purpose of these GT&C’S, the Order must, at least, contain the following information: (i) personal information and address of the Customer; (ii) Products requested (type and number); (iii) installation services requested; (iv) Indication of the date and place for the provision of the Services. The Customer expressly acknowledges that the Seller shall only take into consideration Orders which contain the minimum requirements as indicated in this clause 2.2. 6. Once the Order has been received, the Seller shall have seven (7) working days – starting from the date of receipt of the same – to issue an Order Confirmation accepting, refusing and/or submitting amendments to the Order, and including the relevant Prices –as defined hereinafter- for the Services and/or Products and the total amount to be paid by the Customer ("Order Confirmation"). The Customer will have the right to withdraw any Order within FIVE (5) BUSINESS DAYS after receiving the Order Confirmation if, e.g. he does not accepts the Price indicated by the Seller. 7. Notwithstanding the provisions of clause 2.3 above, the Customer expressly acknowledges the Seller's right to refuse any Order within one (1) month from the Customer's acceptance of the Order Confirmation in accordance with clause 1.2, if the Seller should not receive the approval from the credit institute chosen for the financing of the Order. If the Seller decides not to execute the order pursuant to this clause 3.4, the Customer waives, from now, any and all claims, requests and/or compensation for damages or indemnities from the Seller for the non performance of the Order.
3. Rates-Payments
8. The prices of the Services and/or Products are those resulting from the Order Confirmation and will correspond to the current prices offered by the Seller (“Prices”). 9. The Order Confirmation will indicate, apart from the Prices, other charges as transport costs, shipping and minimum insurance coverage, to the destination agreed in the same Order Confirmation. Unless expressly stated otherwise in writing, Prices in the Order Confirmation are net of all charges relating to taxes, any increases in these charges, which may come into force after the date of the Order Confirmation shall be borne by the Customer. 10. Unless expressly stated otherwise in writing, invoices will be issued: (i) Public Sector Customers: Invoiced for 100% of the KOMPAN equipment value and its freight upon dispatch from the factory for standard and variant products. Bespoke products created by KOMPAN Design Studio are invoiced 100% at the point of order and require pre-payment prior to release into production. The remaining value of the project will be invoiced upon project completion, payable within 30 days from invoice date. (ii) Private Sector Customers: For all new Customers, a request for credit terms can be made when placing the order. If successful, the Customer will be invoiced 50% of the KOMPAN equipment value for standard and variant products at the point of order and requires pre-payment prior to release into production. The remaining 50% of equipment value and 100% of freight is invoiced upon dispatch from the factory, payable within 30 days from invoice date. Bespoke products created by KOMPAN Design Studio are invoiced 100% at the point of order and require pre-payment prior to release into production. The remaining order value will be invoiced upon project completion, payable within 30 days. If credit terms cannot be offered, then the Customer will be invoiced for 100% of the KOMPAN equipment value at the point of order, having 5 days to make payment to secure order being placed with the factory. The remaining order value will be invoiced upon project completion, payable within 30 days from invoice date. (iii) House Builders/Developers: Invoiced for 100% of the KOMPAN equipment value at the point of order, having five (5) days to make payment to secure order being placed with the factory. The remaining order value will be invoiced upon project completion, payable within 30 days from invoice date. (iv) The Seller is entitled to ask for 100% of the product Price when the Order is accepted (by credit card, money transfer or similar) and the payment of the rest upon completion (hand over) of services. In the exceptional case that the Customer does not meet financial criteria set by the Seller, the order will not be released to manufacturing until the pre-payment has been received, so the pre-payment invoice shall be made within five (5) days starting from the date of the invoice in order to achieve timely delivery. (v) In the event of the non-payment by the Customer in accordance with this clause the Customer shall pay the Seller interest at the legal interest rate with effect from the time of due payment, and a penalty equal to 10% of the total bill as compensation for damages, without prejudice to any further damages and any other rights arising from the non-payment. 11. For Services to be carried out over a period exceeding four weeks, the Seller reserves the right to invoice the Customer on a weekly basis. An initial invoice will be issued upon dispatch of the Products as described in clause 3.10, followed at weekly intervals by invoices for completed stages of the Services. In the event that any weekly invoice is not paid in accordance with clause 3, the Seller shall be entitled at its discretion to suspend the Services until payment of all outstanding sums is received or to terminate the Contract in accordance with clause 12. In the event that any weekly invoice is not paid in accordance with clause 4.2, the Seller shall be entitled at its discretion to suspend the Services until payment of all outstanding sums is received or to terminate the Contract in accordance with clause 14.2(i). 12. Every time the Seller works with a public authority, the Seller shall not provide insurance for the sale and, therefore, the public authority shall pay within 30 days from the date of invoice. 13. In the event of the non-payment by the Customer in accordance with this clause 4 the Customer shall pay the Seller interest at the legal interest rate with effect from the time of due payment, and a penalty equal to 10% of the total bill as compensation for damages, without prejudice to any further damages and any other rights arising from the non-payment.
4 Risk and Retention of Title
Notwithstanding delivery and the passing of risk in the Products, or any other provision of these GT&C’S, the property in the Products shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of the price of the Products.
5. Transfer of Risk
14. Unless otherwise and specifically agreed in writing, all risks relating to the Products are transferred to the Customer when the same are delivered to the carrier or freight forwarder.
15. Products for which delivery has been suspended pending payment by the Customer, and Products for which delivery has been rejected or not accepted by the Customer without cause, will be retained by the Seller at the risk and expense of the Customer.
6. Delivery
16. Unless otherwise expressly agreed, times for delivery are not binding and any delay in delivery does not entail any right to damages and/or compensation for the Customer. In case of delays in delivery, the Customer has the right to cancel orders relating to Products not yet delivered but only after giving Seller a reasonable period of time for the performance and only after sending a formal notice to the Seller to comply; the possible cancellation of orders for Products not yet delivered does not in any way affect the right of Seller to receive payment in full for the Products delivered. 17. Unless expressly stated otherwise in the Order Confirmation, the Seller shall organize the delivery of Products CIP (as defined by Incoterms 2010) to their destination, and the Seller has the right to determine the route and means of transport to be used, as well as choose the shipper and the transporter. The Customer agrees to provide Seller with reasonable time to allow completion of activities necessary for the shipment of the Products, all relevant information and a convenient place for unloading the Products transported. If the carrier is unable to discharge the Products carried, the transport will be charged. Any damage to Products caused during or after unloading by the staff of the Customer will be the exclusive responsibility of Customer. 18. If the Customer fails to collect the Products within 15 days of delivery notice sent to the Customer, the Seller may store them at the cost and risk of the Customer. In such an event, the Seller may, without notice, sell the Products and take action to recover from the Customer any damage the Seller has suffered. 19. The delivery terms are automatically extended if the Customer fails to fulfil contractual obligations on time, especially as regards the timeliness of payments (subject to the right of Seller to terminate the contract) or any of the following circumstances: (i) Customer does not provide in due time all necessary data on the supply where required by the Seller; (ii) Customer requests product variants and/or service during the execution of the supply; (iii) Force Majeure; (iv) Any other circumstances where the delay is due to the acts or omissions of the Customer, or to facts and circumstances for which the Customer is responsible. 20. If the performance of the obligation of the Seller becomes partially or temporarily impossible (including the case of interruption of production due to employees and/or any other event that prevents or exacerbates the execution) the Seller shall be entitled at its option to delay deliveries or shipments or reduce the quantities of Products to be delivered or to limit the order of deliveries already made. Under these circumstances the Customer shall not be entitled to request any compensation and/or refuse partial execution and/or refuse extension of the order.
7. Installation and Assembly Service
21. The Services shall be carried out by the Seller in compliance with the terms and conditions established by these GT&C’S and shall relate to the assembly and installation of the Products in the playground as requested by the Customer. 22. In relation to the individual needs expressly indicated by the Customer in the Services Order, the Seller shall install and assemble the Products, the paving, the civil works and any spare parts. In particular, the Customer shall promptly notify the Seller of any existing installations such as water, gas, communications, electricity, or of any other similar communications or installations which may be affected and/or may suffer damages as a consequence of the installation works to be carried out in the place where the Products are to be installed. Should the Customer fail to provide such information prior to the commencement of the Services, the Seller shall not be held liable under any circumstance for any potential or actual damages caused to such installations. 23. The Seller shall be responsible for ensuring: (i) the correct execution of the necessary work for the installation of the Products; (ii) the correct assembly of the Products; and (iii) compliance of the Services with the laws in force;
8. Completion of the Services
24. If the performance of the Services by the Seller becomes impossible whether in full or in part due to Force Majeure, the Seller shall have the right, at its discretion, to delay the performance of the Services or to reduce the quantity of Products to be installed. 25. Should the Customer claim that the Services have not been performed in accordance with the Order Confirmation, the same shall send the Seller, within five (5) working days from receipt of the Seller's invoice, a notice, specifying in detail, the faults found in the Services. If the Customer objectively demonstrates the claimed faults, the Seller shall remedy the same at its own expense; if, instead, the Seller demonstrates that the Services are in compliance with the Order Confirmation, the Customer shall be obliged to pay the Seller the costs and expenses of the activities carried out to demonstrate the compliance of the Services.
9. Liability
26. In no event shall Seller be liable to Customer or any other person for any special, incidental, indirect, consequential or punitive damages obligation, nor for any loss, costs or expenses, including, without limitation, damages consisting of loss start-up, sales or profits, work stoppage, loss of production, impairment of other assets or otherwise, even if arising out of or in connection with a breach of warranty, breach of contract, false or erroneous statement, or other fault. Notwithstanding any statement to the contrary contained in these GT&C’S, the Seller's liability for any claim for damages arising out of or in connection with the Products and their use or the Services shall in no case exceed the amount paid by Customer for the Products or Services which are the subject of claim. 27. The Customer shall be exclusively responsible for the evaluation of the suitability of each Product both in respect of technical specifications and in relation to the necessary requisites and characteristics of each playground or of any other location in which the Products shall be installed, as an example but not limited thereto: the volumetric measurements, ground conditions and/or climatic conditions. 28. The Customer hereby indemnifies and shall keep indemnified the Seller against all loss, liability, damages, costs, claims and expenses arising out of any of the matters set out in clause 9.2. 29. Notwithstanding the case in which the Seller and the Customer sign an agreement for the installation of the Products, the Customer undertakes to indemnify and hold harmless the Seller from any third party right and/or claim relating to the fault and/or non-conformity of the Products being installed in the playground and/or any other location
10. Claims-Substitutions-Returns
30. The Seller shall not be liable for any claim relating to defects or non-conformity of the Products where such complaint has not been communicated by registered mail to the Seller within 8 (eight) days of delivery of the Products. Moreover, the Customer acknowledges that the Seller shall not be liable for any claims arising in relation to the Products where the Customer has transferred the Products in any form to third parties. 31. Return of any Products must be authorized in writing by the Seller prior to shipping and all costs and expenses will be borne by the Customer. 32. The communication of defects and anomalies must be accompanied by supporting documentation. The Seller shall not be liable for defective Products, when the value of the defect reported by the Customer does not exceed 5% of the value of the Products in respect of any Order Confirmation. In any case, the Customer has the obligation to take any necessary action in order to limit the damage and cannot delay the payment of invoices. 33. If the Seller acknowledges any Products to be defective the Seller is only required, at its discretion, to replace the Products or to refund the price or to reduce the price, if the Customer has not yet paid in the price, or to terminate the contract. The Seller cannot be responsible for damages related to processing costs, production losses, lost profits whether direct or indirect and/or any other direct damage and/or indirect, special loss or damage suffered, by the Customer or any other party. 34. The Customer acknowledges and expressly accepts that the Seller shall not be considered liable for any damages, cost and/or charge borne by the Customer as a result of any breach by the Customer and/or any violation of the law and/or regulation that the same may have established. 35. The guarantee referred to in clause 11 shall not in any way apply to damage arising out of fair wear and tear or, from failures caused by incompetence or negligence of the Customer, misuse or by Force Majeure. 36. In the scope of supply of the Products, if necessary, the Seller reserves the right to provide models other than those requested by the Customer, if these are not available, subject to compliance of the alternative models with the properties listed in the Order Confirmation
11. Guarantees
37. The Seller warrants the Products will be free from defects in design, material and workmanship in accordance with the terms set out in the general warranty attached to the Order Confirmation after Delivery: 38. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the contract. 39. The provisions of clauses 12.1 and 12.2 shall not apply to components which are not manufactured by the Seller, in respect of which, the Seller shall, to the extent it is able, pass on any warranty given to it by the manufacturer of the component in question. 40. The Customer must use and rely only on its own expertise, know-how and discernment. Any advice given by the Seller shall not give rise to additional obligations or liability. 41. The Customer shall indemnify and hold harmless the Seller against all damages, losses, costs, expenses, claims, demands and liabilities arising out of or related to the Products and their use by the Customer and/or use or application by the same of any information disclosed or provided by or on behalf of Seller.
12. Termination
42. A party shall be entitled to terminate this agreement with immediate effect by giving written notice to the other party if: (i) the other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default not less than [14] days after being notified in writing to make such payment; or (ii) the other party commits a material breach of its obligations under this agreement and (if such breach is remediable) fails to remedy that breach within a period of [30] days after receipt of notice in writing requiring it to do so; or (iii) the other party commits a series of persistent minor breaches which when taken together amount to a material breach; or (iv) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 214 of the Insolvency Act 1963; or (v) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (vi) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (vii) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or (viii) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or (ix) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or (x) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or (xi) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(iv) to clause 12.1(x) (inclusive); or (xii) the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business. 43. Termination of this agreement shall not prejudice any of the parties' rights and remedies which have accrued as at termination and all payments which have not yet become due shall become immediately due and payable.
13. Intellectual and Industrial Property
44. Each party is obliged not to utilize the brands, names, logotypes, and/or any other distinctive signs of the other party in any way without the prior written consent of the same. 45. Any authorization by one of the parties to use the brands, names, logotypes and/or any other distinctive signs of the other party does not imply any right whatsoever to transfer the property of the same to the party utilizing them.
14. Administrative Permissions
46. The Customer is solely and exclusively responsible for obtaining and maintaining the building authorizations, planning permissions and any other authorizations required for carrying out the supply of the Products or Services and their utilization. Where the Seller is providing Services if agreed, a copy of said authorizations and related and essential attachments, must be forwarded to the Seller before commencement of the Services.
15. Data Protection
47. Seller and Customer each act as independent data controllers in relation to the personal data collected and processed in connection with any sale and execution of the parties’ obligations under these GT&C’s.
48. Each party must in connection with execution of their obligations under these GT&C’s act in compliance with applicable data protection legislations and regulations.
49. Information regarding Seller’s processing of personal data can be found in KOMPAN’s privacy policy on www.kompan.com.
16. Force Majeure
50. A party shall not be deemed to be in breach of the Contract, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to Force Majeure and the time for performance of that obligation shall be extended accordingly. In case the Force Majeure situation continues for more than three months each party shall be free to withdraw from the Contract without liability. 51. For the purposes of these General Terms of Conditions Force Majeure means extraordinary events or circumstances which cannot be foreseen nor prevented, including but not limited to acts such as natural calamities, earthquake, war, revolution, riot, civil insurrection, expropriation, nationalization, nuclear explosion, radioactive or chemical contamination or ionizing radiation, hyperinflation, labour disputes of whatever nature, general shortage or lack of raw materials causing either curtailment or production stop, increase in raw materials cost where any increase in raw material costs increase the total unit price for a product by [5] percent ([five]%) or more, authorities not respecting legal deadlines or not acting in a reasonably foreseeable manner, civics associations, and/or NGOs groups, legal entities or individuals filing objections within administrative procedures and other circumstances beyond the parties’ reasonable control
17. Indemnification and attorney fees
The Customer hereby agrees to indemnify and hold KOMPAN harmless for any liability, damages or costs (including reasonable attorney’s fees), whether arising out of a suit or claim between KOMPAN and the Customer or a third party, or arising out of or related to the failure of the Customer to perform any of its obligations or comply with any of the conditions contained herein. In the event KOMPAN has to take any action against the Customer to obtain enforcement or compliance with any of the terms or conditions contained herein, the Customer agrees to pay all of the costs and expenses of such action (including reasonable attorney’s fees).
18. Termination
(a) A party shall be entitled to terminate this agreement with immediate effect by giving written notice to the other party if: (i) the other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default for fourteen (14) days after being notified in writing to make such payment; (ii) the other party commits a breach of its material obligations under this agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after receipt of notice in writing requiring it to do so; or (iii) the other party becomes insolvent or bankrupt, a receiver is appointed in respect of the whole or any part of the other party's assets or business, or the other party admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, ceases to function as a going concern, or is the subject of an involuntary proceeding in bankruptcy or insolvency and such proceeding is not finally dismissed within sixte (60) days of its institution.
(b) Termination of this agreement shall not prejudice any of the parties' rights and remedies which have accrued as at termination and all payments which have not yet become due shall become immediately due and payable.
19. Force majeure
(a) A party shall not be deemed to be in breach of this agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder (save for obligations relating to payment of any sums due) to the extent that such delay or non-performance is due to Force Majeure and the time for performance of that obligation shall be extended accordingly.
(b) For the purposes of these STCs, “Force Majeure” means any cause materially affecting the performance by a party of its obligations under this agreement arising from any act, events, omissions, happenings or non-happenings beyond its reasonable control including, without limitation, acts of God, strikes, lock-outs or other industrial disputes, war, terrorism, riot, fire, flood, or any disaster affecting either one of the parties hereto or a third party for which a substitute third party is not reasonably available.
20. Applicable law; jurisdiction
This agreement and all disputes or claims arising out of or in connection with this agreement shall be governed and construed by Danish law, excluding its conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this agreement, and its application is expressly excluded. The parties agree any claim or suit arising out of or related to this agreement shall be brought exclusively in Danish court, located in Odense, Denmark. The Customer consents to the exclusive jurisdiction of such court.
21. Assignment
Except as provided herein, neither party may assign its rights or delegate its obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however that KOMPAN may subcontract its obligations to perform the Services to qualified independent contractors without the prior written consent of the Customer. KOMPAN may also assign its rights and obligations hereunder to any of its affiliates upon prior written notice to the Customer. KOMPAN may also assign its rights herein to any company that acquires substantially all of KOMPAN's business to which this agreement relates upon prior written notice to the Customer.
22. General
(a) Notice
Any notice or other communication required to be given to a party under or in connection with this agreement shall be in writing and shall be delivered to the other party personally or sent by certified mail postage pre-paid, recorded delivery, or by commercial courier, at its principal place of business, or sent by facsimile to the other party's main fax number. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid mail or recorded delivery, on the third business day after deposit, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by facsimile, on the next business day after transmission.
(b) Invalidity
If a court or any other competent authority finds that any provision of the agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part of the provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
(c) Entire Agreement
These STCs replace and supersede any prior communications, agreements and understandings between the parties, whether oral or in writing, concerning the sale and supply of the Products or the Services. These STCs, together with any written modification thereof signed by both parties, and the Sales Proposal to which these STCs are applicable, constitute, the entire terms and conditions constituting the agreement of the parties concerning the sale and purchase of the Products and Services identified in the Sales Proposal. All other terms, conditions, warranties, representations or others matters; whether oral or in writing are excluded and disclaimed.
(d) Waiver
A waiver of any right under this agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.