ASH TECHNOLOGIES LIMITED

1.1  These terms and conditions of sale (“Terms”) set out the terms upon which we, ASH Technologies Limited (registration number 220749), (“ASH”) with our registered address at B5, M7 Business Park, Naas, Co Kildare, W91 P684 (“we”, “us”, “our”, the “Supplier”) will supply our Products (as defined below) to any purchaser of our Products (the “Purchaser”, “you”, “your”).

1.2  For all purposes under this Agreement, “Products” shall mean all products, services and projects planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by ASH or any of its Affiliates, together with all services provided or planned by ASH or any of its Affiliates, you agree to be bound by these Terms and confirm that you have authority to bind yourself and any entity on whose behalf you purchase our Products.

1.3 These Terms will apply to the exclusion of all other terms and conditions including any terms and conditions which you purport to apply under any purchase order, confirmation of order or similar document (whether or not such document is referred to in these Terms) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.

1.4 We hereby reserve the right to make changes at any time to these Terms. Notification of such changes will be emailed or posted to you. Every time you submit an Order, the Terms in force at the time of your Order will apply to the Contract between you and us.

1.5 Please read these Terms carefully before submitting an order to the Supplier. YOUR ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 10 ON LIMITATION OF LIABILITY. If you do not agree with any portion of these Terms, you must not order our Products.

1.6 If you have any questions about these Terms or our Products and Services, please contact us at info@ashvision.com, via fax +353 45 882212, or c/o The COO, Ash Technologies Ltd., B5 M7 Business Park, Naas, Co. Kildare.

2.1 Any Order submitted by you is an offer by you (or the entity you represent) to purchase the relevant Product(s) set out in an Order Form, or Purchase Order for the price set out in our price lists or agreed with Ash.

2.2 You acknowledge and agree that you are solely responsible for ensuring that the Product(s) which you order meet your requirements and that the Order Form sets out completely and accurately the Product(s) which you have ordered.

2.3 We may reject all or any part of your Order without liability to you if:

2.3.1 The Products ordered are not available;

2.3.2 There is an error in the price or the description of the Products; and/or

2.3.3 We become aware of or suspect that have suffered or are likely to suffer an Insolvency Event. We hereby reserve the right, in our sole and absolute discretion, to require minimum order quantities and a minimum spend for certain Products.

2.4 If we reject an Order submitted by you, we will endeavour to notify you of that rejection within a reasonable time after you submitted Order.

2.5 If we accept your Order then we will send you an Order Confirmation. This Order Confirmation constitutes acceptance of your Order and once issued, a Contract is formed between you and us, which shall be governed by these Terms and the terms of the relevant Order Form(s). For the avoidance of doubt, a Contract shall not come into existence until the point at which we issue an Order Confirmation to you.

2.6 All Products are subject to availability and other terms, conditions and instructions that may apply to the relevant Products.

2.7 30 Day Sale or Return: All 30 Day Sale or Returns require full proforma payment regardless of existing payment terms. As standard, a minimum €250 restocking fee will apply to all 30 Day Sale or Return goods. If returned goods are damaged but repairable, an additional re-stocking fee will also apply. This additional fee is based on the extent of damage caused and materials used to repair the damage. For goods which are deemed unfit for resale and damaged beyond a resellable condition, the total invoiced amount will remain and no credit will be issued.

3.1 The prices payable for Products will be as set out in our Order Confirmation in an email from us to you. Prices for Products may change from time to time, but price changes will not affect any Order for which an Order Confirmation has been issued to you by us.

3.2 The price of a Product does not include the cost of delivery of the Product(s) to you, which will be added to the total amount due under the Contract. The costs of delivery to you will be as displayed to you on our Order Confirmation.

3.3 All prices quoted are exclusive of any national, state or local sales, use, value-added or other taxes, customer duties or similar tariffs and fees and you will be responsible for paying any such applicable taxes, duties and/or tariffs.

3.4 New business terms: Pro-forma until a satisfactory business relationship is established.

3.5 Credit terms are at the discretion of Ash Technologies Ltd.

3.6 Payment by bank transfer to the account specified in the invoice. You agree that the time for payment of the products shall be of the essence.

3.7 If you fail to make any payment due to us by the due date set out in the relevant invoice, then, without limiting our remedies under these Terms, you shall pay interest on the overdue amount at the rate of [8]% a year above the European Bank’s base rate from time to time. This interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You party shall pay the interest together with the overdue amount.

4.1 Delays in the delivery of an Order shall not entitle you to:

4.1.1 Refuse to take delivery of the Order; or

4.1.2 Claim damages; or

4.1.3 Terminate the Contract or any Order Form.

4.2 We shall have no liability for any failure or delay in delivering an Order to the extent that any failure or delay is caused by your failure to comply with its obligations under the Contract.

5.1 Risk in the Products shall pass to you immediately upon their being dispatched for delivery.

5.2 Title to the Products shall pass to you as soon as we have received payment in full in cleared funds for the Products, including all delivery charges. In the case of project based or custom Product (s) and Service (s), no title shall pass in relation to ASH Intellectual Property Rights.

6.1 Details on specific products are available on request from our service department at service@ash-vision.com

7.1 All samples, photos, descriptive matter, social media posts and endorsements, specifications, illustrations and advertising issued by us or on our behalf are issued or published for illustrative purposes only and to give you an approximate idea of the Product and Service platforms and their results. They will not form part of the Contract and no warranty or guarantee shall be expressed or implied into these Terms or any Order Form.

7.2 We may, in our sole discretion, make available to you images, video clips, content or other descriptive matter in respect of the Products which you might require for advertising purposes. For the purposes of these Terms, we grant you a non-exclusive, revocable, non-transferable, non-sub licensable, licence to use such images, video clips, content or other descriptive matter in respect of the Products for advertising purposes only.

8.1 We warrant that we have the capacity, right, licence and authority to enter into these Terms and to supply the Product (s).

8.2 You undertake that you shall not engage in any unfair, anti-competitive, misleading or deceptive practices in respect of the Products and Services.

9.1 You acknowledge and agree that all Intellectual Property Rights, including all registered and unregistered Intellectual Property Rights, in the Products and any other materials provided to you by us in connection with or in relation to the Products are owned by ASH or our suppliers or licensors. Subject to the provisions of clause 7.2 above, the terms of the Contract do not transfer to you or to any third party any rights, title or interest in or to such Intellectual Property Rights.

9.2 You shall promptly notify us in writing of any possibly violation, infringement or illegal use of Intellectual Property Rights in the Products of which you become aware and we shall take any such action as we deem necessary in respect of such a matter.

9.3 You shall indemnify and keep us fully and effectively indemnified and hold us harmless against all and any losses, liabilities, damages, fines, penalties, costs and expenses (including all legal fees and court costs incurred by it) in respect of any claim made against us arising out of your breach of this Clause 10.

10.1 You shall keep in strict confidence all Confirmation Information. You shall restrict disclosure of such Confidential Information to such of your employees, agents or sub-contractors as need to know the same for the purpose of discharging your obligations under the Contract.

10.2 You shall ensure that such employees, agents or sub-contractors engaged by you are subject to obligations of confidentiality corresponding to those which bind you.

10.3 You shall indemnify and keep us fully and effectively indemnified and hold us harmless against all and any losses, liabilities, damages, fines, penalties, costs and expenses (including all legal fees and court costs incurred by it) in respect of any claim made against us arising out of your breach of this Clause 10.

11.1 Nothing in these Terms excludes or limits our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, or any other liability which cannot be legally limited or excluded.

11.2 Subject to the provisions of Clause 11.1 above, our total aggregate liability to you the Purchaser under or in connection with the Contract, whether arising out of breach of contract, tort (including negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise shall be limited to the total amount paid by you to us in the 12 month period immediately preceding the events giving rise to the claim provided always that the Supplier shall not in any circumstances be liable for:

11.2.1 Your inability to use the Products

11.2.2 You or your customer’s misuse of the Products including but not limited to where you or your client fail to follow any written instructions for the Products;

11.2.3 The cost of procurement of substitute products and services;

11.2.4 Loss of use or value of any data or corruption to data or information or know-how;

11.2.5 Depletion of goodwill, reputation or similar losses;

11.2.6 Loss of business, sales, profit (whether direct or indirect), revenue or business opportunity; or

11.2.7 Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

11.3 To the fullest extent permitted by applicable law, we hereby expressly exclude all conditions, warranties, guarantees and other terms which might otherwise be implied by statute, common law or the law of equity including, without limitation, the warranties of merchantability, fitness for a particular purpose, quiet enjoyment and use of reasonable care and skill. Without limiting the foregoing, we do not make any warranty or representation regarding the use or performance of the Products or the results of such use.

You hereby undertake that you shall, for the duration of the term of the Contract and for a period of two years thereafter, at your own cost and expense, maintain in full force and effect with a reputable insurer the following insurance policies: Product Liability; Public Liability; Personal Injury Liability. You will ensure that we are named as an additional insured on each policy of insurance maintained by you in accordance with this Clause 12.

14.1 On termination of the Contract or any Order Form:

14.1.1 You must immediately cease offering, marketing and supplying our Products to your customers. Otherwise, we shall notify you of the date from which you are to cease offering, marketing and supplying and/or applying our Products to your customers; and/or

14.1.2 We may, in our sole and absolute discretion, re-purchase from you any Products in your possession and/or control which are in new condition and are capable of resale. Any such re-purchase will be at the price or prices paid by you to us for the relevant Product under the Contract minus a restocking fee of 35% of the price purchased for the relevant Products;

14.1.3 you shall immediately return to us all equipment, materials and property belonging to us which we had supplied to you in connection with the supply and purchase of the Products under the Contract or the relevant Order Form (as applicable); and

14.1.4 Return to us all documents and materials (and any copies) containing our Confidential Information.

14.2 Once we provide you with notice of our intention to re-purchase any Products, you will make arrangements to return the re-purchased Products to us promptly and without delay, and in any event, within five (5) Business Days of receiving such notice. Title to and risk of loss with respect to any repurchased Products will pass on delivery to the address we specify in writing. We reserve the right to reject any re-purchased Product that is not in a resalable condition as determined by us, in our sole and absolute discretion, upon receipt of the Product.

14.3 Notwithstanding Clauses 14.1 to 14.2 above, any Products which we do not re-purchase from you will be identified by you to us and you shall destroy the same at your own cost. You shall verify to us in writing that such Products have been destroyed in accordance with this Clause 14.3 and any other instructions provided to you by us.

15.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing and shall be delivered by email to that party’s email address notified to the delivering party or by registered post to its registered office (if a company) or its principal place of business (in any other case).

15.2 Any notice or communication shall be deemed to have been received:

15.2.1 if delivered by email, at the time of delivery of the email to the recipient’s email account provided the sender has not received notice of failed or delayed delivery; or

15.2.2 if sent by registered post, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service, whichever occurs first.

16.1 Assignment  You shall not without our prior written consent , sub-contract, transfer or deal in any other manner with all or any of your rights or obligations under the Contract. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract.

16.2 Force Majeure We shall not be liable for any loss, damage, delays, changes in shipment schedules or failure to deliver a Product or Products due to a Force Majeure Event.

16.3 Standard Terms The terms of the Contract are the only terms on which we will supply Products to you. These Terms [and the terms of any Order Form and any invoices issued by the Supplier] apply to the exclusion of all other terms and conditions including any terms and conditions which you purport to apply under any purchase order, confirmation of order or similar document and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.

16.4 Entire Agreement The terms of the Contract constitute the entire agreement between the parties and supersedes all previous agreements, promises, proposals, representations, understandings, and negotiations, whether oral or written, between the parties.

16.5 Invalidity To the extent that any provision of the Contract is held by any court or competent authority to be invalid, unlawful or unenforceable, then such provision shall be severed, modified or deleted from the remaining terms, conditions and provisions, which shall continue to be valid to the fullest extent permitted by applicable law.

16.6 Waiver No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.7 Governing law and jurisdiction The Contract (and all non-contractual obligations arising from or connected with these Terms) shall be governed by and construed in accordance with the laws of Ireland, and the parties irrevocably submit to the exclusive jurisdiction of the Irish courts.

16.8 Precedence If any conflict arises between any of the documents which form part of the Contract such documents will rank in the following order of priority:

16.8.1 These Terms;

16.8.2 The terms of any Order Confirmation issued by us to you;

16.8.3 The terms of all and any [Purchase Order Forms issued by you to us]; and

16.8.4 The terms of all and any [invoice issued by us to you].

17.1 The Renter shall keep and maintain the rented equipment during the terms of the rental at his own cost and expense.

17.2 The equipment shall be shipped to Renter and returned to Supplier at the Renter’s expense.

17.3 After the rental period – any damage to the equipment will incur a repair fee depending on the extent of damage.

In these Terms, the following capitalised terms shall have the following meanings:

“Business Day” means a day other than a Saturday, Sunday or public holiday.

“Confidential Information” means all technical and commercial know-how of the Supplier including but not limited to marketing strategies, specifications, Intellectual Property Rights, processes, procedures, methods, recommended pricing or initiatives, markets, development plans, strategies and plans which are of a confidential nature and have been disclosed to you by us or our agents, and any other confidential information concerning our business or the Products which you may obtain;

“Contract” means a contract between you and us for the supply by us of Products to you, upon these Terms and the terms of all and any Order Forms in respect of which we have issued you with an Order Confirmation, together with the terms of any Order Confirmation;

“Force Majeure Event” means an event or circumstance beyond the Supplier’s reasonable control.

“Insolvency Event” means, in relation to a party, if

1. a) it threatens or suspends payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts within the meaning of Section 570 of the Companies Acts 2014, as may be amended or replaced from time to time;
2. b) it commences negotiation 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 any of its creditors other than for the sole purpose of a scheme for its solvent amalgamation with one or more other companies or its solvent reconstruction;
3. c) A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with its winding up other than for the sole purpose of a scheme for its solvent amalgamation or its solvent reconstruction;
4. d) An application is made to a court, or an order is made, for the appointment to it of an examiner or a liquidator or if a notice of intention to appoint an examiner or liquidator is given to it or if an examiner or liquidator is appointed to it;
5. e) The holder of a qualifying floating charge over its assets has become entitled to appoint or has appointed a receiver;
6. f) A person becomes entitled to appoint a receiver over its assets or a receiver is appointed over its assets;
7. g) a creditor or encumbrancer of it 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 fourteen (14) Business Days; or
8. h) Any event occurs, or proceeding is taken, with an effect equivalent or similar to those listed in a) to g) (inclusive).

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Order” means your order for the Products set out in any Purchase Order Form which you submit to us;

“Order Acknowledgement” means written confirmation by us to you of our acceptance of an Order, which acceptance may also be communicated by email; and

“Order Form” means the form on which you submit your Order or Purchase Order to us.