MERGON – TERMS AND CONDITIONS OF SALE
1.1. These Terms and Conditions set out the terms and conditions governing the online sale and the delivery of the Products by Mergon to you, as well as the respective rights and obligations of the Parties arising from the online sale of the Products that are offered on the Mergon Website
1.2. Please read these terms carefully before you submit your order for the Products to us. These terms tell you who we are, how we will provide Products to you, how you and we may change or end the Agreement, what to do if there is a problem and other important information.
1.3. You must be at least 16 years old and have the capacity to be bound by these Terms and Conditions to place an order on the Mergon Website.
1.4. Mergon is a company registered in Bermuda. Our company registration number is 8477 and our registered office is at Century House, 16 Par-la-Ville Road, Hamilton, Bermuda. Our registered VAT number is IE 4618057K.
1.5. These Terms and Conditions are the only conditions upon which Mergon International Ireland (“Mergon”, “our”, “us”) is prepared to deal with you and they shall govern the Agreement to the entire exclusion of all other terms and conditions.
1.6. In these Terms and Conditions unless the context otherwise requires or unless otherwise specified:
“Agreement” means these Terms and Conditions and the order you place on the Mergon Website once accepted by us;
“Data Protection Laws” means: Regulation (EU) 2016/679 (the “GDPR”); the Data Protection Acts 1988 to 2018; and any other applicable data protection Laws in any jurisdiction.
“Force Majeure Event” means an event or circumstance or combination of events and/or circumstances not within the reasonable control of the Affected Party without the fault or negligence of the Affected Party which has the effect of delaying or preventing that Party from complying with its obligations under the Agreement including acts of God, war, break-out of disease, a pandemic, restrictions due to Covid-19, a corona virus or another virus, insurrection, riot, civil disturbance, rebellion, acts of terrorism, government regulations, embargos, explosions, fires, floods, unusually severe weather conditions which would not reasonably have been anticipated, tempests, or failures of supply of electrical power, or public telecommunications equipment lines, excluding industrial action of whatever nature or cause (strikes, lockouts and similar) occurring at Mergon’s (or permitted subcontractor or agent of Mergon) places of business;
“IPR” means all intellectual property rights including all patent rights, trade marks and trade mark rights, trade names and trade name rights, service marks and service mark rights, service names and service name rights, brand names, copyrights and copyright rights, database rights, trade dress, business and Product names, logos, slogans, trade secrets, industrial models, utility models, design models, design rights, rights in confidential information, know-how, rights in the nature of unfair competition rights and rights to sue for passing off and all pending applications for and registrations of patents, trade marks, service marks, and copyrights together with all connected and similar or analogous rights in any country or jurisdiction for the full term thereof;
“Mergon Materials” means all IPR, title and interest in all reports, data manuals and/or other materials (including without limitation all and any audio or audio-visual recordings, transcripts, books, papers, records, notes, illustrations, photographs, diagrams or software) in the Products (or any part or parts thereof);
“Mergon Website” means www.mergon.com and all pages therein;
“Products” means the goods to be provided by Mergon to you pursuant to this Agreement; the Products available to purchase on the Mergon Website and their detailed descriptions (in the form of Product data sheets) are shown on the Mergon Website to enable you to obtain information about the key characteristics of the Products that they wish to buy before placing an order;
“Price” shall mean the price paid by you at the time you placed an order for Products on the Mergon Website; the applicable prices shall be those that are displayed on the Mergon Website at the time when you places you order on the Mergon Website;
1.7. In this Agreement, unless the context otherwise indicates: the word “including” and similar terms shall not imply any limitation; a reference to one gender shall include all genders; a reference to the singular shall include the plural and vice versa; headings are included in this Agreement for convenience and are not intended to be binding; a reference to a “company” shall include a reference to any body corporate wherever incorporated; and a reference to a Party shall include a reference to that party’s successors and permitted assigns.
1.8. To the extent of any inconsistency between this Agreement and any other terms and conditions, the terms and conditions of this Agreement shall prevail.
2. Mergon’s Obligations and our Contract with you
2.1. The presentation of Products in the Mergon Website does not constitute a legally binding offer to enter into a sales contract with you and is a non-binding online catalogue. By clicking the “Place Order” button you place a binding offer for the Products in your shopping cart. After the order has been transmitted we will send the you an email in which the receipt of the order is confirmed. Mergon has not yet accepted your order with this email confirmation. Our acceptance of your order for Products on the Mergon Website will take place when we email you to accept it, at which point a contract will come into existence between you and us.
2.2. If we are unable to accept your order, for the Product we will inform you of this by email and will not charge you for the Product. This might be because the Product is out of stock, because of unexpected limits on our resources which we could not reasonably plan for, because we have identified an error in the price or description of the Product or because we are unable to meet a delivery deadline.
2.3. All orders are subject to availability of the Products. The Products sold by Mergon are those featured on the Mergon Website on the day on which you accesses the Mergon Website, subject to availability. Mergon shall use its reasonable endeavours to report any permanent or temporary unavailability of its Products on the Mergon Website’s information page describing each Product or at the time when you places the order. Despite our vigilance, should a Product that is ordered not be available at the time of sending the order (such as due to a stock outage or if Mergon no longer sells the Product), Mergon will inform you about this as soon as possible by e-mail or phone and you will be entitled to:
2.3.1. either receive the available Products only; or
23.2. cancel the order in its entirety.
2.4. A notification that the Product is unavailable may be issued at any point in time between the approval of the order and its delivery. Should you already have been charged at the time of the cancellation, Mergon undertakes to refund the entire value of the order to you as soon as possible if the order has been cancelled in its entirety, or the value of the unavailable Products, directly to the bank account / bank card that was used to pay for the order.
3. Your rights to make changes to your Product order
3.1. If you wish to make a change to the Product you have ordered please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the Product, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change. If we cannot make the change or the consequences of making the change are unacceptable to you, we may facilitate the cancellation of your order if it has not been despatched.
4. Mergon Products
4.1. In consideration of the payment of the Price, we will supply the Products to you in accordance with the terms and conditions of this Agreement.
4.2. The images of the Products on the Mergon Website are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that a device’s display of the colours accurately reflects the colour of the Products. Your Product may vary slightly from those images. The packaging of the Product may vary from that shown in images on the Mergon Website.
5.1.1. Mergon shall deliver the Products to the location (s) specified by you on the Mergon Website (the “Location”). We will deliver the Products to you as soon as reasonably possible, we will contact you with an estimated delivery date.
5.2. If our supply of the Products is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event, but if there is a risk of substantial delay of more than12 days from the original estimated delivery date you may contact by email to firstname.lastname@example.org us to receive a refund for any Products you have paid for but not received.
5.3. If no one is available at your address to take delivery and the Products cannot be posted through your letterbox, we will leave you a note informing you of how to rearrange delivery. If you do not collect the Products from us as arranged or if, after a failed delivery to you, you do not re-arrange delivery or collect them from a delivery depot we will contact you for further instructions and may charge you for any further delivery costs.
6. Cancellation and Refunds
6.1. If, for any reason, you wish to cancel any order you have placed and it has not been dispatched, please contact email@example.com. It is our policy to try to process orders immediately however, it may not always be possible to stop an order from being dispatched.
6.2. After dispatch, we will refund or exchange any item you are not completely happy with if you return it to us within 14 days of the item being delivered to your nominated address. Please return items in their original condition, unused, in their original packaging. Please use the original box and original packaging where possible.
6.3. We cannot refund or exchange Products which have been opened, tested or partially used and which cannot be returned in the same physical state to which they were purchased.
7. Risk and Title of Products
7.1. You agree that risk in the Products shall pass to you on delivery of the Products and will be your responsibility from the time we deliver the Product to the Location address you gave us.
7.2. You own a Product once we have received payment in full for the Product.
7.3. Each delivery shall be deemed to have been performed once you or a third party designated by you have taken physical possession of the Product(s), with signature of the delivery note where available.
7.4. It is your responsibility to check that the Products that are delivered comply with the order and are in good condition when they are received. In case of damaged or missing items, you must promptly notify Mergon by sending an e-mail to firstname.lastname@example.org without undue delay providing a reasonable level of detail.
8. Prices and Delivery Costs
8.1. Prices for Products are quoted on the Mergon Website including all taxes. Delivery costs (including any customs duty and other taxes and levies linked to the delivery) will be as displayed to you on the Mergon Website and shall be set out on the order summary prior to final approval and purchase by you. All costs shall be set out in the order confirmation email sent subsequently to you.
8.2. The Prices include VAT however If the rate of VAT changes between your order date and the date we supply the Product, we will adjust the rate of VAT that you pay, unless you have already paid for the Product in full before the change in the rate of VAT takes effect.
8.3. Should you use a bank card tied to an account denominated in a currency other than Euro, your bank may charge currency conversion costs and bank costs, which must be borne by you in full. Should you decide to return the Products, these costs shall not be refunded.
8.4. Prices charged will normally be verified as part of the order confirmation. In case of an error in the Price on the Mergon Website at the time of the order, where a Product’s correct Price is less than the Price on the Mergon Website, you will be charged the lower amount. If a Product’s correct Price is higher than the Price on the Mergon Website, we shall contact you to give you the option to either maintain your order while paying the right Price, or to cancel your order. If we 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 end the Agreement, refund you any sums you have paid and require the return of any goods provided to you.
8.5. Payment must be made on the Mergon Website immediately at the time of placing the order, in Euro and by Stripe payment or by bank transfer. Any other method of payment shall not be accepted. You hereby warrant to Mergon that you hold all the requisite authorisations to use your chosen method of payment at the time of the approval of your order.
8.6. If you do not make any payment to us by the due date we may charge interest to you on the overdue amount at the rate of 7.5% a year above the base lending rate of LIBOR from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.
8.7. If you think an invoice is wrong please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge you interest on correctly invoiced sums from the original due date.
9.1. You shall pay Mergon the Price of the Products payable on the Mergon Website at the time you place an order (which shall be deemed to include all applicable taxes (other than VAT, which shall be separately shown), duties and levies and all packing, carriage, freight, shipping, insurance and delivery costs) and in accordance with any payment terms therein.
10. Mergon Intellectual Property
All rights, including any IPR, in any Mergon Materials and Products belong to Mergon, subject only to a licence in your favour to use the Products for their ordinary use
11. Force Majeure
11.1. In the event of any failure, interruption or delay in the performance of Mergon’s obligations resulting from any Force Majeure Event, Mergon shall promptly notify you in writing specifying:
11.1.1. the nature of the Force Majeure Event;
11.1.2. the anticipated delay in the performance of obligations;
11.1.3. the action proposed to minimise the impact of the Force Majeure Event,
and the Mergon shall not be liable or have any responsibility of any kind for any loss or damage thereby incurred or suffered by you; provided always that the Mergon shall use all reasonable effects to minimise the effect of the same and shall resume the performance of its obligations as soon as reasonably possible after the removal of the cause.
12. Cancelling an Order
12.1. You may be able to cancel your order within a short period of ordering. Your ability to do so will depend on your chosen delivery method (and will be set out in the acknowledgement email).
12.2. You may also be able to cancel your order in accordance with the terms of S.I. No. 484/2013 – European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013.
13. Limitation of Liability
13.1. We do not exclude or limit any warranty or condition implied by law that it would be unlawful to exclude or limit.
13.2. This Clause 10 set out the entire financial liability of Mergon (including any liability for the acts or omissions of Mergon Personnel) to you under or in respect of the Agreement for any claim or claims, whether arising in contract, tort (including negligence), breach of statutory duty or restitution, or for misrepresentation or otherwise howsoever.
13.3. Nothing in this Agreement shall limit or exclude the liability or remedy of either Party: for death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors; for fraud or fraudulent misrepresentation; arising in respect of a defective Product by virtue of the Liability for Defective Products Act 1991, as amended; or for any act, omission or matter, liability for which may not be legally excluded or limited.
13.4. Subject to Clause 13.3 Mergon shall not have any liability to the Purchaser, whether arising in contract, tort (including negligence), breach of statutory duty or restitution, or for misrepresentation, or otherwise howsoever, for any loss of profit, loss of business, depletion of goodwill or any indirect or consequential loss whatsoever arising out of or in connection with the Contract.
13.5. Subject to Clause 13.3 and Clause 13.4, Mergon’s total liability to you under or in respect of the Agreement for any claim or claims, whether arising in contract, tort (including negligence), breach of statutory duty or restitution, or for misrepresentation, or otherwise howsoever shall in no circumstances exceed the Price.
14. Dispute Procedure
14.1. Subject to the Parties’ respective rights to apply to the courts upon any cause of action at any time, the Parties shall seek to resolve any disputes between them, arising out of or relating in any way to the issues covered by the Agreement, amicably.
14.2. In the event of any dispute between the Parties in relation to the Agreement you may endeavour to resolve such dispute with a representative of Mergon within fourteen (14) days of the matter being referred to them.
15. European Commission Online Dispute Resolution (ODR)
We will accept your complaint via the contact details above. However, you can also send a complaint through the European Commission Online Dispute Resolution (ODR) service https://ec.europa.eu/consumers/odr/main/?event=main.home2.show&lng=EN. When filling in the trader details field with our details, you will need to provide our email address, which is email@example.com .
16.1. Any notice or other communication required to be given under the Agreement shall be in writing addressed to the relevant Party at the address set out in the Agreement for such party and may be sent by prepaid registered post, personal delivery or email. Any such notice or other communication will be deemed to have been duly served or given:
16.1.1. if posted by registered post at the expiration of forty-eight (48) hours after the envelope containing the same was delivered into the custody of the postal authorities (and not returned undelivered);
16.1.2. if personally delivered, at the time of delivery; or
16.1.3. if sent by email, on the first day following successful transmission.
16.2. If notice is not given or served during usual business hours on a day other than a Saturday or Sunday or a statutory or public holiday in Ireland it will be deemed to have been given or served on the next day which is not a Saturday or Sunday or a statutory or public holiday.
The Agreement shall be assignable in whole or in part by Mergon but shall not be assignable by you.
19. Entire Agreement
The Agreement constitutes the entire agreement and undertaking of the Parties, and any and all previous agreements, arrangements and understandings (whether written or oral) between the Parties with regard to the subject matter of the Agreement. It is expressly agreed, without prejudice to the foregoing, that any standard terms or conditions of supply of Mergon (including those which appear on any documents furnished by Mergon in the course of providing the Services) shall not be applicable.
If any of these Terms and Conditions are invalid or unenforceable, the remainder of these Terms and Conditions shall continue to have full force and effect.
The Agreement may only be amended by Mergon. We may change these Terms and Conditions at any time.
22. Governing Law and choice of jurisdiction
The Agreement shall in all aspects be governed by and construed in accordance with the laws of Ireland and the Parties hereby agree that the courts of Ireland have exclusive jurisdiction to hear and determine any disputes arising out of or in connection with the Agreement.
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