Terms and Conditions

PARTIES
 
1.
1.    LOFT CRAG (NI) LIMITED, incorporated and registered in Northern Ireland with company number NI634593 whose registered office is at 158 Upper Newtownards Belfast, County Antrim, United Kingdom (the “Supplier“); and
2.
2.    The signatory of the Purchase Order (the “Customer“).
BACKGROUND
The Supplier has agreed to sell to the Customer, and the Customer has agreed to purchase from the Supplier, one or more Fingernails 2 Go Digital Nail Art Countertops and/or associated consumables on the terms and conditions of this Agreement.
3.
AGREED TERMS
1     DEFINITIONS & INTERPRETATION
1.1 In this Agreement and any document referred to in it:
  1. we“, “us” and “our” means the Supplier and all affiliates, employees, officers, agents and contractors of the Supplier and “you” or “your” means the Customer and all affiliates, employees, officers, agents and contractors of the Customer; and
  2. unless the context otherwise requires the following terms have the following meanings:
Agreement” means this document and includes the Purchase Order.
Business Day” means a day other than a Saturday, Sunday or public holiday in Northern Ireland when banks in Belfast are open for business.
Consumables” means the Fingernails 2 Go ink cartridges, ink, acrylic nails and any other components of the Product that, in the course of ordinary use of the Product, will require replenishment or replacement.
Control” means the ability to direct the affairs of another person whether by virtue of ownership of shares, contract or otherwise.
Delivery Date” means the date specified as such in the Purchase Order.
Delivery Location” means our manufacturer’s premises at GP Tech S.A. Rua Dr. José Espírito Santo, Lote 1A, 1959-001, Lisboa, Portugal, or such other location agreed between the parties in the Purchase Order.
Payment” means the sum payable for Countertops at the time of order.
Distribution Agreement” an agreement between the Supplier and a Distributor for the sale and distribution of the Products within an exclusive territory.
Distributor” means any natural or legal person granted an exclusive licence by the Supplier to import, sell or otherwise market the Product within an exclusive territory.
Invoice” means a written confirmation of all costs payable by you to us in respect of a Purchase Order and any additional costs thereof.
Countertop” means a Fingernails 2 Go Digital Nail Art Countertop.
Product” means the products and related accessories sold by us to you (including the Countertops and where applicable any Consumables or Spare Parts).
Purchase Order” means the purchase order to which this document is attached.
Regulatory Authority” means:
  1. any government or local authority and any department, ministry or agency of any government; and
  2. any other authority, agency, commission or similar entity having powers or jurisdiction under any law or regulation or the listing rules of any recognised stock or securities exchange.
Reserved Customer” means any customer in respect of which we have appointed an exclusive distributor or we have reserved to ourselves, as notified to you from time to time.
Reserved Territory” means any country or area in respect of which we have appointed an exclusive distributor or we have reserved to ourselves, as notified to you from time to time.
TFT Advertising Screen / Screensaver” means any audio/visual material adapted for use on the Advertising Screen/Screensaver.
Spare Parts” mean any Fingernails 2 Go spare parts used to repair the Products.
Warranty Period” means 12 months from the date we notify you that the relevant Product is ready for collection from the Delivery Location.
1.2 References to persons include individuals, unincorporated bodies, government entities, companies and corporations.
1.3 References to the singular include references to the plural.
1.4 A reference to a statute or statutory provision is a reference to such statute as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.5 Any phrase introduced by the terms including, include, in particular or other similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.6 The Schedule forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedule.
1.7 If there is any conflict or ambiguity between this document and the Purchase Order, the Agreement shall prevail.
1.8 A reference to any party shall include that party’s personal representatives, successors or permitted assigns.
1.9 A reference to writing or written includes fax and e-mail.
1.10         References to clauses and Schedules are to the clauses and Schedules of this Agreement; references to paragraphs are to paragraphs of the relevant Schedule.
2     BASIS OF CONTRACT
2.1 These terms and conditions apply to the Agreement to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Purchase Order constitutes an offer by you to purchase the Products in accordance with these terms and conditions. You are responsible for ensuring that the terms of the Purchase Order are complete and accurate.
2.3 The Purchase Order shall only be deemed to be accepted when we issue a written acceptance of the Order, at which point the Agreement shall come into existence.
2.4 Subject to clause 2, the Agreement constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by us or on our behalf of which is not set out in the Agreement.
2.5 If you are a Distributor, the Distribution Agreement agreed between us shall also apply (and the additional terms set out in the Schedule shall not apply). If there is any inconsistency between this Agreement and the Distribution Agreement, the Distribution Agreement shall prevail.
2.6 If you are not a Distributor the additional terms set out in the Schedule shall apply.
2.7 Any samples, drawings, descriptive matter, or advertising produced by us and any descriptions or illustrations contained in our catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Agreement or have any contractual force.
2.8 A quotation for the Products given by us shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3     PRODUCTS
3.1 The Products are described in our catalogue.
3.2 We reserve the right to amend the specification of the Products from time to time.
4     PURCHASE PRICE AND PAYMENT
4.1 The purchase prices for the Products are as advised by us in writing and we may vary purchase prices at our sole discretion from time to time.
4.2 Our prices are quoted in euros and sterling.
4.3 You shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase of the Products.
4.4 Unless we agree otherwise in writing, 100% of the total value of the Invoice (“/Payment“) must be transferred to us within 3 Business Days of the date of the Invoice.
4.5 In the event of cancellation by you after receipt of the Payment by us, the Payment shall not be refundable.
You must make all payments in accordance with the terms of our Invoice.
4.6 We may, at our sole discretion, accept a variation to the Purchase Order, provided you pay all costs we and our manufacturer have incurred in fulfilling the Purchase Order up until the date of receipt of your requested variation.
4.7 We reserve the right to decline any Purchase Order at our sole discretion.
5     DELIVERY, RISK AND TITLE
5.1 All Products shall be delivered under Ex-Works. You will bear responsibility for the destination countries clearance procedures and final delivery.
5.2 Delivery of the Products shall be completed on the Products’ arrival at the Delivery Location.
5.3 No Products will be made available for collection until you have paid us for those Products in full.
5.4 Risk in the Products shall pass from us to you on completion of delivery in accordance with clause 5.2 above.
5.5 Title to the Products shall pass from us to you on our receipt of all payments due under the Purchase Order in accordance with clause 3.
5.6 We will use our best endeavours to meet the Delivery Date but shall not accept any liability whatsoever for failure to do so. Failure to meet a Delivery Date will not prejudice any agreements as regards to other deliveries.
6     CUSTOMER WARRANTIES
6.1 You warrant that you enter into this Agreement solely as a result of your own investigations, enquires, advice and knowledge and do not rely on any representations or warranties made by us (or our employees, officers or agents) which are not expressly set out in this Agreement.
6.2 You indemnify us against all actions, claims, demands, losses, damages and expenses of whatever form or nature, including legal fees and or other costs and disbursements we sustain or incur as a result of or in connection with:
  1. any negligent or fraudulent act or omission or wilful misconduct by you;
  2. any breach of this Agreement by you;
  3. any breach of any law, statute, regulation, rule, ordinance, standard, by-law or order of any Regulatory Authority by you;
  4. any damage to any property, or injury or death to any person, to the extent caused or contributed to by the acts and/or omissions of you;
  5. any use of any Product, Consumable or Intellectual Property Rights other than in accordance with this Agreement.
7     EXCLUSION AND LIMITATION OF LIABILITY
7.1 Nothing in this Agreement shall limit or exclude our liability for:
  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
  2. fraud or fraudulent misrepresentation; and
  3. any matter in respect of which it would be unlawful for us to exclude or restrict liability.
7.2 Subject to clause 7.1:
  1. our liability to you for any and all action, claim, demand, loss, damage and/or expense arising out of or in connection with this Agreement will be limited at our sole discretion to one or more of the following:
    1. the replacement of the Product or supply of equivalent Product;
    2. the repair of the Product;
  • the payment of the cost of replacing the Product;
  1. payment of the cost of having the Product repaired.
  1. we shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect loss, or consequential loss, loss of profits, loss of revenue, loss of anticipated savings, loss of goodwill, exemplary damages, punitive damages, or special damages in connection with or arising out of this Agreement; and
our total liability to you in respect of all loss or damage arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equivalent to the price paid for the products purchased.
8     CONFIDENTIAL INFORMATION
8.1 All terms and conditions in respect of our business relationship and any other information we provide to you is our confidential information except where such information is in the public domain.
9     YOUR RELATIONSHIP WITH US
9.1 You are an independent contractor to us. You are not our employee or agent. You must not make any representations on our behalf, or enter into any agreement, contract, arrangement, or understanding on our behalf.
10  GENERAL
10.1         If we are prevented, hindered or delayed in or from performing any of our obligations under this Agreement by any circumstance beyond our control (or the control of any of our suppliers), we shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
10.2         We may at any time undergo a change of Control or assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights or obligations under this Agreement.
10.3         You may undergo a change of Control, but you may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Agreement, without our prior written consent.
10.4         No failure or delay by a party to exercise any right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
10.5         We may set-off or deduct any money you owe to us on any account whatsoever from any money which we may be liable to pay to you.
10.6         The provisions of this Agreement will prevail over any other document and constitute the entire agreement between the parties.
10.7         If the whole or any part of a provision of this Agreement is invalid or unenforceable it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this Agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
10.8         Any indemnity or obligation of confidentiality in this Agreement is independent and survives termination of this Agreement.
10.9         Our rights provided in this Agreement are cumulative with and not exclusive of our rights, powers or remedies provided by law independently of this Agreement.
10.10       Any variation or modification will have no force and effect unless both parties agree to said variation or modification in writing.
10.11       This Agreement is governed by the laws of Northern Ireland and you are deemed to have submitted to the exclusive jurisdiction of the courts of Northern Ireland.
10.12       The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
10.13       Any notice to be given under this Agreement will be in writing.
10.14       You may not use websites or social media platforms for the promotion of the Products, unless we have provided explicit permission. All content requires approval by us for publishing you also agree to remove any content at our request and agree to our reasonable instructions that may arise from time to time.
10.15       You may not use websites, social media platforms or any other online facilities to sell the Products, unless we have provided explicit permission in writing.
10.16      International Buyers: Please note import duties, taxes and charges are not included in the itemprice or shipping charges. These charges are the buyer responsibility. Please check with your country customs office to determine what these additional costs will be prior to bidding/buying.

 

Schedule – Additional Terms which apply where the Customer is not a Distributor
1         You shall not make active sales of the Products in the Reserved Territories or to Reserved Customers. For these purposes, active sales shall be understood to mean actively approaching or soliciting customers, including but not limited to, the following actions:
1.1     visits;
1.2     direct mail, including the sending of unsolicited e-mails;
1.3     advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at customers in Reserved Territories and to Reserved Customers;
1.4     online advertisements addressed to customers in Reserved Territories and to Reserved Customers and other efforts to be found specifically by users in Reserved Territories and belonging to the Reserved Customers, including the use of territory based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to users in Reserved Territories and belonging to the Reserved Customers; and
1.5     advertising or promotion in any other form.
2         You undertake and agree with us that all times during the Warranty Period you will purchase all Spare Parts and Consumables only from us.
3         You acknowledge that any breach of paragraph 2 will render the warranty invalid.
4         You undertake and agree that you will:
4.1     subject to paragraph 2, at all times purchase all Spare Parts and Consumables only from us or any other supplier whose products meet the relevant standards advised to you from time to time by us;
4.2     inform us immediately of any complaint, claim or criticism relating to the Products or the Consumables (“Complaint”) as soon as the you become aware of such Complaint; and
4.3     use any Countertop Advertising Screen or/and Screensaver provided by us and do not use any other Advertising Screen and/or Screensaver on the Countertop without our prior written consent.
4.4     not use or purport to use the name Fingernails2Go or any other derivation thereof.
5         You shall be responsible for obtaining any necessary import licences or permits necessary for the entry of the Products into your country, or their delivery to you. You shall be responsible for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Products.
6         You warrant to us as at the date of this Agreement that you have satisfied yourself that the Products comply with all laws and regulations affecting the manufacture, sale, packaging and labelling of Products which are in force within your country or any part of it (“Local Regulations”).
7         We shall from time to time upon request, provide you with any technical information reasonably required for you to satisfy yourself that the Products comply with the Local Regulations.
8         You shall indemnify us in respect of all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection to:
8.1     any breach of paragraphs 2 or 4.1.
8.2     any breach of the warranty contained in paragraph 6; and
8.3     any third party claim to the extent that such third party claim is caused by your negligence or failure to comply with the manufacturer’s written instructions.