1.1 Entire agreement. The Contract is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
1.2 Language. These Terms and the Contract are made only in the English language.
1.3 Your copy. You should print a copy of these Terms for future reference.
2. PLACING AN ORDER AND ITS ACCEPTANCE
2.1 Placing your order. Each order is an offer by you to buy the goods specified in the order (Goods) subject to these Terms.
2.2 Correcting input errors. Please check the order carefully before confirming it. You are responsible for ensuring that your order and any specification submitted by you is complete and accurate.
2.3 Acknowledging receipt of your order. After you place an order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.4.
2.4 Accepting your order. Our acceptance of your order takes place when we send an email to you to accept it, at which point the Contract between you and us will come into existence.
2.5 If we cannot accept your order. If we are unable to supply you with the Goods for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Goods, we will refund you the full amount including any delivery costs charged as soon as possible.
3. OUR GOODS
3.1 Although we have made every effort to display the colours accurately, we cannot guarantee that your computer's display of the colours accurately reflect the colour of the Goods. Any samples, shade cards, images, drawings, descriptive matter or advertising produced by us and any descriptions or illustrations contained in our website, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3.2 Shade cards for the Goods and brochures as may be available from time to time may be ordered free of charge from our website.
3.3 The packaging of your Goods may vary from that shown on images on our website, catalogues or brochures.
3.4 We reserve the right to make changes or upgrades to the Goods or to the packaging of or specifications for the Goods at any time or if required by any applicable law or regulatory requirement.
3.5 For trade and other retail customers, the Goods we supply to you are not for resale outside the European Union. You are responsible for the supply and delivery of the Goods to your customers and shall comply with all applicable laws and regulations relating to the sale, supply and delivery of such Goods.
4. DELIVERY, TRANSFER OF RISK AND TITLE
4.1 We will contact you with an estimated delivery date, which will be within 1 working day after the date on which we email you to confirm our acceptance of your order. Any quoted delivery times are estimates only, and the delivery status of each order may be tracked using an individual tracking number. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause 12 (Events Outside Our Control) for our responsibilities when this happens.
4.2 Delivery is complete once the Goods have been unloaded at the address for delivery set out in your order and the Goods will be at your risk from that time.
4.3 You own the Goods once we have received payment in full, including all applicable delivery charges.
4.4 If we fail to deliver the Goods, our liability is limited to the cost of obtaining replacement goods of a similar description and equivalent quality. However, we will not be liable to the extent that any failure to deliver was caused by an Event Outside Our Control, or because you failed to pay or to provide adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
4.5 If you fail to take delivery within 10 days after the day on which we notified you that the Goods were ready for delivery, we may resell part of, or all the Goods and after deducting any reasonable storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods.
5. OUR PROPRIETARY RIGHTS
5.1 As between Proud Paints and you, all intellectual property rights in the Goods and the Proud Paint’s website shall be owned by Proud Paints and its licensors.
5.2 The Proud Paints name and logo and all other trade marks used by us on or in connection with the Goods and any and all design rights, know-how including, but not limited to, methodologies, manufacturing processes, supply chain details, trade secrets and other commercially sensitive information, inventions, patents, copyright and other intellectual property rights and proprietary rights subsisting now or in the future in and to the Goods are owned by us and/or our licensors. Any and all such know-how and other confidential commercially sensitive information (in whatever medium disclosed or made available to you) is the confidential information of Proud Paints and/or our licensors.
5.3 For the avoidance of doubt, no rights in respect of our confidential information other than those expressly stated herein are granted to you or to be implied from these Terms. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright, know-how, trade mark, design or other intellectual property right held, made, obtained or licensable by Proud Paints now or in the future. You may not use our confidential information or other proprietary information for any purpose other than the proper performance of this Agreement. We reserve all our rights.
6. PRICE OF GOODS AND DELIVERY CHARGES
6.1 The prices of the Goods will be as set out in our current price lists and/or as quoted on our website at the time you submit your order. We take all reasonable care to ensure that the prices of Goods are correct at the time when the relevant information was entered onto the system. However, please see clause 7.5 for what happens if we discover an error in the price of Goods you ordered.
6.2 Prices for our Goods may change from time to time, but changes will not affect any order you have already placed and which has been accepted by us.
6.3 The price of Goods excludes VAT (where applicable) at the applicable current rate chargeable in Ireland for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Goods in full before the change in VAT takes effect.
6.4 The price of the Goods does not include delivery charges, importation taxes, duties or any other such charges relating to the delivery of the Goods all of which shall be payable by you. For online orders, our delivery charges are as advised to you during the check-out process before you confirm your order.
6.5 We sell a large number of Goods through our website. It is always possible that, despite our reasonable efforts, some of the Goods on our website may be incorrectly priced. We will normally check prices as part of our dispatch procedures so that:
6.5.1 where the Goods' correct price is less than the price stated on our website, we will charge the lower amount when dispatching the Goods to you; and
6.5.2 if the Goods' correct price is higher than the price stated on our website, we will contact you in writing as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Goods at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Goods and refund you any sums you have paid.
6.6 If you fail to make any payment due to us under these Terms by the due date for payment, then you shall pay on demand interest on the overdue amount at the rate of 3% per annum above the European Central Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
6.7 You shall pay all amounts due hereunder in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by you against any amount payable by Proud Paints to you.
7. OUR WARRANTY FOR THE GOODS
7.1 The Goods are intended for use only within the European Union and are not for resale outside the European Union. We do not warrant that the Goods comply with the laws, regulations or standards outside the European Union.
7.2 We provide a warranty that on delivery and for a period of 12 months from the date of delivery, the Goods shall:
7.2.1 subject to clause 4, conform in all material respects with their description;
7.2.2 be free from material defects in design, material and workmanship; and
7.2.3 be fit for any purpose held out by us.
7.3 Subject to clause 8.4, if:
7.3.1 you give us notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 8.2;
7.3.2 we are given a reasonable opportunity of examining the Goods; and
7.3.3 if we ask you to do so, you return the Goods to us at our cost,
we will, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
7.4 We will not be liable for breach of the warranty set out in clause 8.2 if:
7.4.1 you make any further use of the Goods after giving notice to us under clause 8.3;
7.4.2 the defect arises as a result of us following any drawing, design or specification supplied by you;
7.4.3 you alter or repair the Goods without our written consent;
7.4.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.4.5 the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.5 We will only be liable to you for the Goods' failure to comply with the warranty set out in clause 8.2 to the extent set out in this clause 8.
7.6 The terms implied by sections 13 to 15 of the Sale of Goods and Supply of Services Act 1980 are, to the fullest extent permitted by law, excluded from the Contract.
7.7 These Terms also apply to any repaired or replacement Goods supplied by us to you.
8. REFUND OR EXCHANGE POLICY (non-defective goods)
8.1 Our policy for handling defective or faulty Goods is set out in clause 10.
8.2 Except in respect of the customised Goods contemplated by clause 9.3 of defective Goods, a refund may be obtained for the price paid by you for unopened, saleable and undamaged Goods which are returned to us within 14 days from the date of purchase and an exchange may be arranged on purchases of unopened, saleable and undamaged Goods up to 28 days of receipt of your purchase. Should you wish to return Goods purchased online you can do so by courier. All such returned Goods are your responsibility until we receive delivery of them. We can help you arrange delivery, email our office with your request and purchase details to email@example.com.
8.3 Goods which have been specially tinted or produced to meet your colour request may not be returned or exchanged under this clause 9, only returned Goods that are colours on the Proud Paints shade card may be accepted for a refund within the above 14-day period or an exchange in accordance with this clause 9.
8.4 When returning the Goods, you are responsible to ensure the Goods are securely packaged and returned in their original wooden crate or supplied packaging intact and include with your return: Your Name - Invoice no, Your proof of purchase (or proof of your date of purchase) of the Goods - Description of the Goods you are returning and reason for returning.
8.5 Returns of Goods must be forwarded to Proud Paints Ltd, 6/9 Trinity Street, Dublin 2, Ireland, D02 EY47. Your refund will be issued only when the returned Goods have been received by us, inspected and approved for resale/restocking. Please allow sufficient time for this inspection and/or refund. Goods that are opened, used, damaged, contaminated or which have not been properly stored or maintained in good condition after delivery will not be accepted for a refund or exchange under this clause 9 and you will bear all costs (including shipment costs) related to such Goods.
8.6 If you are an individual consumer, this will not affect your statutory rights.
8.7 Where Goods are delivered faulty, damaged during our delivery to you, we will replace order at no extra cost to you within 2-3 business days or if the order is incorrect, we will refund you the original delivery charge in addition to the returns delivery charge, you shall bear no expense. Please note that all breakages/damaged Goods noted by you on receipt must be made aware to the driver of the delivery and documented and immediately notified to us upon your receipt of such Goods. You should not accept the delivery of damaged Goods from the courier service. Please notify us immediately of any such damaged Goods and, as we have our Goods insured, we will arrange to replace and deliver free of charge Goods which have been damaged during our delivery to you.
8.8 If the Goods are returned by you because you no longer want them, you will bear all of the original delivery charges and these charges will not be refunded to you. All returns of the Goods are your responsibility until they reach us. We recommend you use a reputable courier service that insures the value of the Goods you are returning.
8.9 Refunds may only be made for your purchase of the Goods in accordance with this clause 9. Where the Goods have been ordered and paid for via our website, refunds will be processed to the payment card used by you when you originally placed the order for the Goods. If the original payment card is unavailable or impossible to process for any reason, we will use all reasonable efforts to offer you an exchange or an equivalent value voucher. This does not affect your statutory rights.
9. OUR LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE (DEFECTIVE GOODS)
9.1 Nothing in these Terms limits or excludes our liability for:
9.1.1 death or personal injury caused by our negligence;
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods and Supply of Services Act 1980; or
9.1.4 any other liability that cannot be limited or excluded by law.
9.2 Subject to clause 10.1, we will under no circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
9.2.1 any loss of profits, sales, business, or revenue;
9.2.2 loss or corruption of data, information or software;
9.2.3 loss of business opportunity;
9.2.4 loss of anticipated savings;
9.2.5 loss of goodwill; or
9.2.6 any indirect or consequential loss.
9.3 Subject to clause 10.1, our total liability to you for all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the price of the Goods.
9.4 Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Goods are suitable for your purposes.
10.1 Without limiting any of our other rights, we may suspend the supply or delivery of the Goods to you, or terminate the Contract with immediate effect by giving written notice to you if:
10.1.1 you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 14 days of you being notified in writing to do so;
10.1.2 you fail to pay any amount due under the Contract on the due date for payment;
10.1.3 you take any step or action in connection with you entering examinership, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
10.1.4 your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your financial obligations under the Contract has been placed in jeopardy; or
10.1.5 in the case of a company, you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business.
10.2 Termination of the Contract shall not affect your or our rights and remedies that have accrued as at termination.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11. EVENTS OUTSIDE OUR CONTROL
11.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control ( Event Outside Our Control).
11.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
11.2.1 we will contact you as soon as reasonably possible to notify you; and
11.2.2 our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Goods to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
11.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel, you will have to return (at our cost) any relevant Goods you have already received and we will refund the price you have paid, including any delivery charges.
12. COMMUNICATIONS BETWEEN US
12.1 When we refer to "in writing" in these Terms, this includes email.
12.2 Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by registered post or other next working day delivery service, or email.
12.3 A notice or other communication is deemed to have been received:
12.3.1 if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
12.3.2 if sent by registered post or other next working day delivery service, at 9.00 am on the second working day after posting; or
12.3.3 if sent by email, at 9.00 am the next working day after transmission.
12.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
12.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.1 Assignment and Transfer.
13.1.1 We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you by posting on this webpage if this happens.
13.1.2 You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
13.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
13.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
13.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
13.5 Governing law and jurisdiction. This Contract is governed by Irish law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Contract to the exclusive jurisdiction of the Irish courts.