Terms and Conditions

Arkil Limited-Terms & Conditions of Trade

1. DEFINITIONS

1.1. “Arkil Limited” shall mean Arkil Limited its successors and assigns or any person acting on behalf of and with the authority of Arkil Limited.

1.2. “Customer” shall mean the person or entity described as such on the invoices, application for credit, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall mean any person acting on behalf of and with the authority of such person or entity.

1.3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4. “Goods/Services” shall mean Goods/Services supplied by Arkil Limited to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Arkil Limited to the Customer.

1.5. “Services” shall mean all services supplied by Arkil Limited to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods/Services as defined above).

1.6. “Price” shall mean the cost of the Goods/Services as agreed between Arkil Limited and the Customer subject to clause 3 of this contract.

2. ACCEPTANCE

2.1. Any instructions received by Arkil Limited from the Customer for the supply of Goods/Services and/or the Customer’s acceptance of Goods/Services supplied by Arkil Limited shall constitute acceptance of the terms and conditions contained herein.

2.2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

2.3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be amended with the written consent of Arkil Limited.

2.4. The Customer undertakes to give Arkil Limited at least fourteen (14) days notice of any change in the Customer’s name, address and/or any other change in the Customer’s details.

3. PRICE AND PAYMENT

3.1. At Arkil Limited sole discretion the Price shall be either;

1. as indicated on invoices provided by the Agent to the Customer in respect of Goods/Services supplied; or
2. The Agent’s quoted Price which shall be binding upon the Agent provided that the Customer shall accept the Agent’s quotation in writing within thirty (30) days.
3.  The Price quoted in the Arkil Limited tender is related to the costs at the tender date. If there is a rise in such costs between the date of tender and the completion of the contract, the price will be adjusted in accordance with the formula which is referred to and enclosed with the tender or in the absence or non- applicability of such formula, by the amount of such rise.
4.  Arkil Limited may require Personal / Bank / Corporate Guarantee forms to be signed by authorised or non authorised account holders.

3.2. Arkil Limited may require a 35% deposit and a further 35% of the value at the halfway stage of the complete invoice value as deemed by Arkil Limited for non authorised account holders.

3.3. Arkil Limited may require 100% payment to escrow (central fund) with full agreement of all parties directly involved in the commissioning of Goods/Services.

3.4. Time for payment for Goods/Services shall be 30 days for authorised account holders from date of invoice, unless otherwise agreed by Arkil and the Customer in writing.

3.5. Payment will be made by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and Arkil Limited.

3.6. VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4.DELIVERY OF GOODS/SERVICES

4.1. At Arkil Limited’s sole discretion delivery of the Goods/Services shall take place when;

1. the Customer takes possession of the Goods/Services at Arkil Limited’s address; or
2. the Customer takes possession of the Goods/Services at the Customer’s address (in the event that the Goods/Services are delivered by Arkil Limited or Arkil Limited’s nominated carrier); or
3. The Customer’s nominated carrier takes possession of the Goods/Services in which event the carrier shall be deemed to be the Customer’s.

4.2. At Arkil Limited’s sole discretion the costs of delivery are;

1.  included in the Price, or
2.  In addition to the Price.

4.3. The Customer shall make all arrangements necessary to take delivery of the Goods/Services whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods/Services as arranged then Arkil Limited shall be entitled to charge a reasonable fee for redelivery.

4.4. Delivery of the Goods/Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

4.5. Arkil Limited may deliver the Goods/Services by separate installments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

4.6. The Customer shall take delivery of the Goods/Services tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that;

1. such discrepancy in quantity shall not exceed 5%, and
2. The Price shall be adjusted pro rata to the discrepancy.

4.7. The failure of Arkil Limited to deliver shall not entitle either party to treat this contract as repudiated.

4.8. Arkil Limited shall not be liable for any loss or damage whatever due to failure by Arkil Limited to deliver the Goods/Services (or any of them) promptly or at all.

5. RISK

5.1. If Arkil Limited retains ownership of the Goods/Services nonetheless, all risk for the Goods/Services passes to the Customer on delivery.

6. TITLE

6.1 It is the intention of Arkil Limited and agreed by the Customer that ownership of the Goods/Services shall not pass, and the Goods/Services shall remain the property of Arkil Limited until:

1.  the Customer has paid all amounts owing for the particular Goods/Services, and
2. the Customer has paid all amounts owing to Arkil Limited, including any balances owing and debts due on any legal grounds, and
3. the Customer has met all other obligations due by the Customer to Arkil Limited in respect of all contracts between Arkil Limited and the Customer

6.2. Receipt by Arkil Limited of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Arkil Limited’s ownership or rights in respect of the Goods/Services shall continue.

6.3. It is further agreed that:

1.  where practicable the Goods/Services shall be kept separate and identifiable until Arkil Limited shall have received payment and all other obligations of the Customer are met; and
2.  Until such time as ownership of the Goods/Services shall pass from Arkil Limited to the Customer, Arkil Limited may give notice in writing to the Customer to return the Goods/Services or any of them to Arkil Limited. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods/Services shall cease; and
3.  Arkil Limited shall have the right of stopping the Goods/Services in transit whether or not delivery has been made; and
4.  the Customer is only a bailee of the Goods/Services and until such time as Arkil Limited has received payment in full for the Goods/Services then the Customer shall hold any proceeds from the sale or disposal of the Goods/Services on trust for Arkil Limited; and
5. the Customer shall not deal with the money of Arkil Limited in any way which may be adverse to Arkil Limited; and
6.  the Customer shall not change the Goods/Services in any way nor grant nor otherwise give any interest in the Goods/Services while they remain the property of Arkil Limited; and
7.  Arkil Limited can issue proceedings to recover the Price of the Goods/Services sold notwithstanding that ownership of the Goods/Services may not have passed to the Customer; and
8.  Until such time that ownership in the Goods/Services passes to the Customer, if the Goods/Services are converted into other products, the parties agree that Arkil Limited will be the owner of the end products.

7. CUSTOMER’S DISCLAIMER

7.1. The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by Arkil limited and the Customer acknowledges that the Goods/Services are bought relying solely upon the Customer’s skill and judgment.

8.DEFECTS

8.1. The Customer shall inspect the Goods/Services on delivery and shall within twenty one (21) days notify Arkil Limited of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Arkil Limited an opportunity to inspect the Goods/Services within a reasonable time following delivery if the Customer believes the Goods/Services is defective in any way. If the Customer shall fail to comply with these provisions the Goods/Services shall be presumed to be free from any defect or damage. For defective Goods/Services, which Arkil Limited has agreed in writing that the Customer is entitled to reject, Arkil Limited’s liability is limited to either (at Arkil Limited’s discretion) replacing the Goods/Services or repairing the Goods/Services.

9. WARRANTY

9.1. Extent of warranty. Arkil Limited will repair free of charge any part of the goods manufactured by the Agent which may defective through materials or workmanship. The time line for this as 8.1. This Warranty is extended on the basis of payment as to 3.0 to 3.6 of this document. No warranty is given by Arkil as to the quality or suitability of the Goods/Services for any purpose and any implied warranty is expressly excluded. Arkil Limited shall not be responsible for any loss or damage to the Goods/Services, or caused by the Goods/Services, or any part thereof however arising.

10. SALE OF GOODS/SERVICES ACT 1893 AND SALE OF GOODS/SERVICES AND SUPPLY OF SERVICES ACT 1980 or later version

10.1. The agreement is subject to the provisions of the Sale of Goods/Services Act 1893, the Sale of Goods/Services and Supply of Services Act 1980 and any later versions of the Acts, in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded).

10.2. Notwithstanding clause 11.1 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Sale of Goods/Services Act 1893 (in particular sections 12-15), or the Sale of Goods/Services and Supply of Services Act 1980, or any laws or legislation governing the rights of consumers, except to the extent permitted by those Acts laws or legislation.

10.3. In particular where the Customer buys Goods/Services as a consumer the provisions of Clauses 8, 9 and 10 above shall be subject to any laws or legislation governing the rights of consumers.

11. DEFAULT & CONSEQUENCES OF DEFAULT

11.1. Interest on overdue invoices shall accrue from the date when payment becomes due until the date of payment at a rate based on the ECB plus a margin of 7% per annum which will accrue on a daily basis, as is the rate set out in Prompt Payments of Accounts Legislation.

11.2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Arkil Limited from and against all costs and disbursements incurred by Arkil Limited in pursuing the debt including legal costs on a solicitor and own customer basis and Arkil Limited’s collection agency costs.

11.3. Without prejudice to any other remedies Arkil Limited may have, if at any time the Customer is in breach of any obligation (including those relating to payment); Arkil Limited may suspend or terminate the supply of Goods/Services to the Customer and any of its other obligations under the terms and conditions. Arkil Limited will not be liable to the Customer for any loss or damage the Customer suffers because Arkil Limited exercised its rights under this clause.

11.4. If any account remains overdue then an amount of the greater of €20.00 or 10.00% of the amount overdue (up to a maxi mum of €200) shall be levied for administration fees which sum shall become immediately due and payable.

11.5. Without prejudice to Arkil Limited’s other remedies at law Arkil limited shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to Arkil Limited shall, whether or not due for payment, become immediately payable in the event that:

1. any money payable to Arkil Limited becomes overdue, or in Arkil Limited’s opinion the Customer will be unable to meet its payments as they fall due; or
2.  the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

12. SECURITY AND CHARGE

12.1. Despite anything to the contrary contained herein or any other rights which Arkil Limited may have howsoever:

1. where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Arkil Limited or Arkil Limited’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Arkil Limited (or Arkil Limited’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
2. should Arkil Limited elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Arkil Limited from and against all Arkil Limited’s costs and disbursements including legal costs on a solicitor and own customer basis.
3. The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Arkil Limited or Arkil Limited’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.

13.CANCELLATION

13.1. Arkil Limited may cancel these terms and conditions or cancel delivery of Goods/Services at any time before the Goods/Services are delivered by giving written notice. On giving such notice Arkil Limited shall repay to the Customer any sums paid in respect of the Price. Arkil Limited shall not be liable for any loss or damage whatever arising from such cancellation.

13.2. In the event that the Customer cancels delivery of Goods/Services the Customer shall be liable for any loss incurred by Arkil limited (including, but not Limited to, any loss of profits) up to the time of cancellation.

14. DATA PROTECTION

14.1 Where the Customer and/or the Guarantor (as applicable) is a natural person (within the meaning provided by Regulation (Eu) 2016/679 of the European Parliament of the Council), the following applies:
The Customer and the Guarantor/s (if separate to the Customer) authorises, for the purposes of performing this contract, Arkil Limited to:

1.  collect, retain and use any information about the Customer, for the purposes of assessing the Customer’s creditworthiness for the purposes of performing this contract; and
2. disclose information about the Customer, whether collected by Arkil Limited from the Customer directly or obtained by Arkil Limited from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing (whether before or after judgement) a default by the Customer on publicly accessible credit reporting databases.

14.2 Where the Customer and/or the Guarantor (as applicable) is not a natural person (within the meaning provided by Regulation (EU) 2016/679 of the European Parliament of the Council), the following applies: the Customer and the Guarantors (if separate to the Customer) authorises Arkil Limited to:

1. collect, retain and use any information about the Customer, for the purposes of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
2. disclose information about the Customer, whether collected by Arkil Limited from the Customer directly or obtained by Arkil Limited from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing (whether before or after judgement) a default by the Customer on publicly accessible credit reporting databases.

15. LITERATURE

15.1. All literature, samples, specifications, dimensions and weights submitted by Arkil Limited are approximate only and the data and descriptions contained in catalogues and other advertising material while being as accurate as possible may not necessarily be identical with products and services Arkil Limited supplies, and Arkil Limited reserves the right to supply products that have minor modifications in specifications as Arkil Limited sees fit.

15.2. The descriptions, illustrations and performances contained in catalogues, other advertising material and price lists do not form part of the contract of sale of the products.

16.CUSTOMER’S RESPONSIBILITY

16.1. It is the Customers responsibility to;

1. accept the recommended specifications of the Contractor; and
2. ensure there is adequate access at the delivery point to accept the Goods; and
3. Make the working site available on the agreed date and ti me. Should delivery be delayed or interrupted by the failure of the Customer to adhere to the delivery schedule agreed to between the Contractor and the Customer then any additional costs will be invoiced to the Customer as an extra; and
4. Have all areas clean, clear and prepared to enable scheduled work to be completed in accordance with the agreed schedule. Delays to the working process caused by the Customer, their employees or Arkil Limited will result in chargeable downtime; and
5. Provide adequate and safe access to the site for all workmen and equipment. Delays in gaining access to, or from, the site will attract chargeable downtime; and
6.  fully disclose any information that may effect the Contractor’s working procedures; and
7. ensure that adequate lighting is provided in the working area; and
8. Provide adequate dustsheets to protect the Customer’s furniture and décor. The Contractor will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by the works; and
9. provide a suitable power supply to within five (5) metres of the working site; and
10.  provide suitable and adequate waste disposal facilities unless otherwise agreed with the Contractor

17. GENERAL

17.1. Each clause of this contract is severable and distinct from the others. If any provision of these terms and conditions is or becomes invalid, void, illegal or unenforcable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

17.2. Arkil Limited may supply ready mixed concrete other than as part of the construction contract.Arkil Limited shall be responsible only for the supply of the concrete and not its proper placement. This is the customer’s responsibility.

17.3. These terms and conditions and any contract to which they apply shall be governed by the laws of Ireland and are subject to the jurisdiction of the courts of Ireland.

17.4. Arkil Limited shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Arkil Limited of these terms and conditions.

17.5. In the event of any breach of this contract by Arkil Limited the remedies of the Customer shall be Limited to damages. Under no circumstances shall the liability of Arkil limited exceed the Price of the Goods/Services.

17.6. The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by Arkil Limited.

17.7. Arkil Limited may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

17.8. Arkil Limited reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Arkil Limited notifies the Customer of such change. Except where Arkil Limited supplies further Goods/Services to the Customer and the Customer accepts such Goods/Services, the Customer shall be under no obligation to accept such changes.

17.9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.