TRADEFIRST

ONLINE APPLICATION AND TERMS AND CONDITIONS OF TRADING

IMPORTANT: The following terms and conditions shall form part of and are included in Tradefirst’s Application to open a Tradefirst Account and participate and trade in Tradefirst’s Trade Exchange. All applicants accept that this application is not an agreement to participate or trade in Tradefirst’s Trade Exchange but an application to open a Tradefirst Account and applications will only be considered by Tradefirst when the applicant has accepted the Terms and Conditions.

1. NATURE OF PARTIES

1.1 In these conditions “Tradefirst” means Tradefirst, the Trade Exchange and “Client” means a business or individual that has contracted with Tradefirst to exchange its goods and/or services with other Clients of Tradefirst and wishes to participate in Tradefirst’s Trade Exchange.

1.2 Once the Agreement has been accepted by Tradefirst the Client shall be entitled to participate in Tradefirst’s Trade Exchange and the Client agrees to abide by these terms and conditions set out below.

2. DEFINITIONS

“Agreement” means Tradefirst’s Application and Agreement Form.

“Authorization Number” means the number issued by Tradefirst to a Selling Client in order to sanction a Trade between a Selling Client and a Buying Client, which number shall only be valid for 21 days from the date of issue.

“Bad Debt Reserve Account” has the meaning ascribed to it in Article 5.3 hereof.

“Bad Debt Reserve Fee” has the meaning ascribed to it in Article 5.3 hereof.

“Tradecheque” means an instrument of value, denominated in Trade Euros, issued by Tradefirst only and signed by a Buying Client in respect of goods and/or services received by the former.

“Brokerage Fee” has the meaning ascribed to it in Article 5.2 hereof.

“Buying Client” means an account opened by Tradefirst in the name of a Client who or which has completed the Agreement and who or which has paid the Subscription Fee then prevailing and which has been accepted by a director of Tradefirst.

“Client Account” means an account opened by Tradefirst in the name of a Client who or which has completed the Agreement and who or which has paid the Subscription Fee then prevailing and which has been accepted by a director of Tradefirst.

“Client in Good Standing” means a Client who or which:-

(i) has paid all fees due to Tradefirst pursuant to Article 5 hereof;

(ii) trades with other Clients in accordance with these terms and conditions; and

(iii) has a valid and unexpired Client Account and Trade Account.

“Deferred Payment Date” has the meaning ascribed to it in Article 5.5 hereof.

“Monthly Statement ” means the statement issued to the Client by Tradefirst on a monthly basis detailing all Trades and balances relevant to that month.

“Pool of Resources” means the goods and/or services supplied or pledged by Clients to Tradefirst for reciprocal trade purposes and for further distribution by Tradefirst for the benefit of the Pool of Resources.

“Renewal Date” has the meaning ascribed to it in Article 5.1

“Resource Replacement Account” has the meaning ascribed to it in Article 5.5.4 (iii).

“Selling Client” means a client of Tradefirst which has agreed to supply goods and/or services on a reciprocal trade basis to the Exchange.

“Subscription Fee” has the meaning ascribed to it in Article 5.1 hereof.

“Termination Date” has the meaning ascribed to it in Article 5.5.3.

“Trade(s)” means a reciprocal purchase or sale of goods and/or services contained in the Pool of Resources whereby payment is made by the Buying Client by way of Trade Euros, as recorded in a Tradecheque, posted to the Selling Client’s Client Account

“Trade Euro(s)” means an accounting unit used to record the value of a Trade and one Trade Euro shall have a value equal to one Euro ( €1.00).

“Trade Exchange” means the system of reciprocal exchange of goods and/or services between clients and which is administered by Tradefirst.

“Trade Account” means the account in the name of a Client which at any point in time clearly sets out the number of Trade Euros registered in its name.

“Trade Euro Loan” has the meaning ascribed to it in Article 7 hereof.

3. TRADEFIRST FUNCTIONS AND RESPONSIBILITIES

3.1 Tradefirst shall serve in a brokerage capacity in organizing and facilitating Trades among Clients. Tradefirst shall use its best endeavours to broker a Client’s Trade Euros into goods and services provided by other Clients to the Pool of Resources.s.

3.2 Tradefirst shall provide a system for clearing Tradecheques issued by Clients only in respect of a Trade.

3.3 Tradefirst shall endeavour to accurately record Trades and, subject to Article 4 to administer the Pool of Resources on behalf of Clients.

3.4 Tradefirst shall be entitled to participate in the Trade Exchange through a subsidiary company and shall in that respect have the same rights and obligations as all other Clients of Tradefirst.

3.5 Not withstanding any other provision of these terms and conditions insofar as Tradefirst participates or is deemed or held to participate in any Trade, it shall have been deemed to have participated in all respects as agent of and with the authority and upon the instructions of the Buying Client.

4. DISCLAIMERS


GENERAL DISCLAIMERS

4.1 While Tradefirst shall use all usual commercial endeavours to broker a Client’s Trade Euros into goods and/or services and to source goods and services it shall not be legally bound to do so and in particular Tradefirst disclaims responsibility for:

4.1.1 the availability of goods and/or services from any source; and

4.1.2 ensuring that goods and/or services contained in the Pool of Resources comply with all relevant legislation (together with any amendment thereto or re-enactment thereof).

4.2 While Tradefirst shall use its best endeavours to accurately record Trades and to administer the Pool of Resources, it is acknowledged by Clients that in order to do so Tradefirst requires full compliance with the terms and conditions hereof by clients and therefore to the extent that Clients fail to comply Tradefirst shall have no liability or responsibility to Clients or any other party whatsoever.

4.3 For the avoidance of doubt Clients acknowledge that:

4.3.1 the sole principals in a Trade and those responsible for its conduct are the Buying Client and Selling Client involved therein and that Tradefirst shall have no responsibility in this regard whatsoever;

4.3.2 a Trade entered into by Clients is done so voluntarily and in accordance with the terms and conditions then prevailing of the Selling Client;

4.3.3 the duty to inspect goods or services supplied under a Trade for quality and quantity (in the case of goods) rests upon the Buying Client;

4.3.4 Tradefirst shall not be the guarantor of any Trade or Trade Euro;

4.3.5 Tradefirst makes no representation or warranty either expressly, impliedly or other wise and disclaims all liability as to the fitness, quality, delivery date, merchantability, prices or any term of the Trade. Clients hereby indemnify and holds Tradefirst harmless with respect to any claim, debt or liability whatsoever, arising out of a Trade wherein the Client is a Buying Client or a Selling Client;

4.3.6 Clients shall abide by all applicable laws or regulations appropriate to a Trade and Tradefirst shall not be responsible to ensure compliance by Clients with such laws or regulations; and

4.3.7 Clients shall hold Tradefirst harmless with respect to any claim, debt, or liability whatsoever, arising out of a Trade wherein the Client is a Buying Client or a Selling Client. lient or a Selling Client.

WEB SITE AND ONLINE TRADING DISCLAIMERS

4.4 This section states the Terms and Conditions under which a client may use the Tradefirst Web Site at www.tradefirst.ie. Please read this section carefully. If you do not accept the Terms and Conditions stated here, do not use the Site. The Site is operated from Ireland by Tradefirst of 11, Bath Avenue, Sandymount, Dublin 4, Ireland. Tradefirst may revise these Terms and Conditions of trading on the site at any time by amending and / or updating the posting on the Site. You agree to visit this page periodically to review the Terms and Conditions, because they are binding on you and each time you use the Site you agree to be bound by the current terms and conditions.

4.5 Registration and use of the site : 

4.5.1. Account Application: If you have chosen to submit your Application for Tradefirst membership using the on-line application form on The Tradefirst Web Site, you hereby agree to the Terms and Conditions of this agreement.

4.5.2. In order to become a registered user of the Site, you are required to choose a user name and password. It is your responsibility to keep your user name and password secure. You may not share your password or user account with any other party. Other users of your user account and password shall be bound by these Terms and Conditions as if they were you. You agree to immediately notify Tradefirst of any unauthorized use of your user account or password or any other breach of security or breach of these Terms and Conditions of which you become aware.

4.5.3. Guest Users Restricted access to the Site is available by entering the site as a “Guest User”. Guest Users and non-verified users are also subject to these Terms and Conditions.

4.6. Intellectual Property: The contents of the Site, such as articles, other text, graphics, images, software and other material (“Material”), are protected by copyright under both Irish and foreign laws. Unauthorized use of the Material may violate copyright, trademark and other laws. You must retain all copyright, trademark and other proprietary notices contained in the original Material on any copy you make of the Material. You may not sell or modify the Material or reproduce, display, publicly perform, distribute, or otherwise use the Material in any way for any public or commercial purpose. In particular, the use of the Material on any other web site or in a networked computer environment for any purpose is prohibited. Tradefirst authorizes you to view and download a single copy of the Material on the Site solely for your personal, non-commercial use and subject to you having paid any trading and / or subscription fees outstanding on your fees account. If you violate any of these Terms, your permission to use the Material automatically terminates and you must immediately destroy any copies you have made of the Material.

4.7. User Submissions: 

4.7.1 Generally, any communications which you post to the Site is considered to be non-confidential. In accessing the Site you accept that electronic mail passing over the Internet may not be free from interference by third parties. In consequence, we cannot guarantee the privacy or confidentiality of any information relating to the use passing over the Internet.

4.7.2. By posting communications including data, graphics and logo’s to the Site, you automatically grant Tradefirst a royalty-free, perpetual, irrevocable non-exclusive license to use, reproduce, modify publish, edit, translate, distribute, perform and display the communication alone or as part of other works in any form, media, or technology whether now known or hereafter developed, and to sub-license such rights through multiple tiers of sub-licenses.

4.7.3. As a user, you are responsible for your own communications and are responsible for the consequences of their posting. Tradefirst does not represent or guarantee the lawfulness, truthfulness, accuracy, or reliability of any of communications posted by other users or endorses any opinions expressed by users. You acknowledge that any reliance on material posted by other users will be at your own risk.

4.8 You must not:

4.8.1. Impersonate another person;

4.8.2. Post material in circumstances that breach the civil or criminal law;

4.8.3. Post material that is copyrighted, unless you are the copyright owner or have the permission of the copyright owner to post it;

4.8.4. Post material that reveals trade secrets, unless you own them or have the permission of the owner;

4.8.5. Post material that infringes on any intellectual property rights of others or on the privacy or publicity rights of others;

4.8.6. Post material that is obscene, defamatory, threatening, harassing, abusive, hateful, embarrassing or a nuisance to another User or any other person or entity;

4.8.7. Post a sexually-explicit image;

4.8.8. Post advertisements or solicitations of business or;

4.8.9. Post content not relevant to the Irish Insurance Industry.

4.9. You agree not to use the Site or cause or permit any Materials to be used:-

4.9.1. So as to jeopardize or prejudice the operation, quality or integrity of the Site or Materials, or the operation, quality or integrity of any telecommunications network;

4.9.2. For any commercial purpose including any surveys, contests, or pyramid schemes, nor to use the Site to participate in or cause others to participate in sending chain letters, junk e-mail, spam, duplicative or unsolicited messages, advertising or promotional material;

4.9.3. To harvest or otherwise collect information about others, including e-mail addresses, without their consent;

4.9.4. To distribute, download upload or transmit any material which contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs,

4.9.4. Contrary to the terms and conditions of any Internet Service Provider whose services you may use.

4.10. Tradefirst does not screen communications in advance and is not responsible for screening or monitoring material posted by Users. If notified by a User of communications which allegedly do not conform to this Agreement, we may investigate the allegation and determine in good faith and at our sole discretion whether to remove or request the removal of the communication. Each User hereby agrees that any such action taken by us will not be challenged by User. Tradefirst has no liability or responsibility to Users for performance or non-performance of such activities. Tradefirst reserves the right to expel Users and prevent their further access to the Site for violating these Terms and Conditions or the law. Tradefirst reserves the right to remove communications which are abusive, illegal, or disruptive.

User of communications which allegedly do not conform to this Agreement, we may investigate the allegation and determine in good faith and at our sole discretion whether to remove or request the removal of the communication. Each User hereby agrees that any such action taken by us will not be challenged by User. Tradefirst has no liability or responsibility to Users for performance or non-performance of such activities. Tradefirst reserves the right to expel Users and prevent their further access to the Site for violating these Terms and Conditions or the law. Tradefirst reserves the right to remove communications which are abusive, illegal, or disruptive.

4.11. Tradefirst is not responsible for any injury and or damage to any individual as a result either directly or indirectly of any information published on this Site. The accuracy of the information is not guaranteed and does not constitute business or other professional advice and is subject to change and therefore Tradefirst cannot accept responsibility for any loss or expense incurred upon using the information.

4.12. Tradefirst’s Liability

4.12.1. The Material may contain inaccuracies or typographical errors. Tradefirst makes no representations about the lawfulness, accuracy, reliability, completeness, or timeliness of the Material or about the results to be obtained from using the Site and the Material. In particular Tradefirst makes no warranties or representations as to the lawfulness, accuracy, reliability or quality of any professional opinions made available on the Site. The use of the Site and the Material is entirely at your own risk. Changes are periodically made to the Site and may be made at any time.

4.12.2. Tradefirst shall not be liable, and shall not otherwise be deemed to be in breach of this Agreement, for any failure to perform (or delay in performing) any of its obligations hereunder caused by circumstances beyond its reasonable control.

4.12.3. Tradefirst does not warrant that the site will operate error-free or that the site and its server are free of computer viruses or other harmful elements. If your use of the site or the material results in the need for servicing or replacing equipment or data, Tradefirst is not responsible for those costs.

4.12.4. The site and material are provided on an “as is” basis without any warranties of any kind. Tradefirst and its suppliers, to the fullest extent permitted by law, disclaim all conditions and warranties, express or implied including any warranty or terms of merchantability, non-infringement of third parties rights, quiet enjoyment and any warranty of fitness for particular purpose. Tradefirst and its suppliers make no warranties about the lawfulness, accuracy, reliability, completeness, or timeliness of the material or links.

4.12.5. The user acknowledges and agrees that the limitations set forth are fundamental elements of this agreement and the Site would not be provided to the user in the absence of such limitations.

4.13. Disclaimer of Consequential Damages

4.13.1 In no event shall Tradefirst, its suppliers, or any third parties mentioned at the site be liable for any damages whatsoever (including, without limitation, incidental, punitive, exemplary, special and consequential damages, lost profits, or damages resulting from lost data or business interruption) resulting from the use or inability to use the site and the material, whether based on statute, contract, tort, (including negligence), or any other legal cause, and whether or not Tradefirst is advised of the possibility of such damages.

4.14. Limitation of Liability

In the event that Tradefirst is found to be liable to you notwithstanding the disclaimers of liability contained in these Terms and Conditions the aggregate liability of Tradefirst to you for all claims arising from the use of the Site or Materials is limited to €100.

4.15 Indemnity

You agree to defend, indemnify, and hold harmless Tradefirst, its officers, directors, employees, agents and service providers, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting whether directly or indirectly from your use of the site or Material (including software) or your breach of the terms of this Agreement.

4.16. Links to and from Other Web Sites

The Site contains links to third party Web Sites. These links are provided solely as a convenience to you and not as an endorsement by Tradefirst of the content on such third party Web Sites. Tradefirst is not responsible for the content of linked third party sites and does not make any representations regarding the content or accuracy of materials on such third party Web Sites. If you decide to access linked third-party Web Sites, you do so at your own risk and in accordance with the prevailing terms and conditions of such third party sites.

4.17. Tradefirst generally welcomes the hyper-linking to the Site from other appropriate Web Sites provided such links are to the Site’s homepage (and no

deeper within the Site) and provided Tradefirst gives consent to the establishment of such links. Notwithstanding the foregoing, Tradefirst reserves the absolute right to refuse to consent to such links without giving reasons. Any links to the Site from another Web Site must be presented in such a manner that the viewing of the Site is not impaired by framing or similar techniques that may impair the visitor’s user experience.

4.18. Export Control

Many countries control the export of products and information. You agree to comply with such restrictions and not to export or re-export the materials (including Software) to countries or persons prohibited under export control or other applicable laws. By downloading the Materials (including Software), you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, use, export, or re-export of the Materials.

4.19. Privacy Policy

Tradefirst (or any subsequent purchaser of Tradefirst) will keep your data in accordance with its obligations under the Irish Data Protection Act, 1988. Tradefirst does however reserve the right to distribute aggregate information about the volume of users to advertisers or sponsors but we will never disclose your identity.

4.20 General

Tradefirst makes no representation that the Materials are appropriate or available for use outside of Ireland , and access to them from territories where their content is illegal is prohibited. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with applicable local laws.

4.21. Any disputes, claims or proceedings arising out or in any way relating to the Materials or the Site shall be governed by the laws of Ireland . The Irish Courts

shall have exclusive jurisdiction for the purpose of any proceedings arising out of or in any way relating to the Materials or the Site. Without prejudice to the foregoing, Tradefirst may seek provisional or protective relief in the courts of another State prior to, during or after any substantive proceedings have been instituted in Ireland and Tradefirst may bring enforcement proceedings in another state on foot of an Irish judgment.

4.22. Tradefirst may at any time and without liability, modify, suspend or discontinue the Site or any Materials (or any part or specification thereof), with or

without notice, for any valid technical, operational or commercial reasons.

5. PAYMENT OF TRADEFIRST FEES

5.1 Clients shall pay, on submitting the Agreement duly completed to Tradefirst, a Subscription Fee of €380.00 (plus VAT at the then prevailing rate). This shall be an annual fee, effective from the date of acceptance of the Agreement by Tradefirst so however that:

5.1.1 Tradefirst reserves the right, upon giving one months notice to the Client prior to the renewal date of its Subscription Fee (“the Renewal Date”), to increase the amount of the Subscription Fee;

5.1.2 that the Subscription Fee shall be payable by the Client on or before the Renewal Date;

5.1.3 Where the Subscription Fee is not paid on or before the Renewal Date the Client’s Trade Account shall be suspended and the provisions of Article 5.5.2 et seq shall apply subject to the following:

(a) ““Subscription Fee” shall be substituted for “Brokerage Fee” wherever appearing therein;

(b) ““30 days” shall be substituted for “3 months” wherever appearing therein.

5.2 A Buying Client shall pay a Brokerage Fee of eight point two five per cent (8.25%) plus VAT at the then prevailing rate in cash (i.e. non reciprocal trade) on the gross value ( inclusive of VAT ) of each purchase made by it. Unless otherwise agreed in writing by Tradefirst and a Buying Client regarding the payment date of the Brokerage Fee (“Deferred Payment Date”) it shall be paid by the Buying Client and receipted as “payment received and cleared” by Tradefirst before an Authorization Number will be issued to a Selling Client in respect of a Trade.

5.3 In addition to the Brokerage Fee a Buying Client shall also pay a Bad Debt Reserve Fee of one per cent (1%) in Trade Euros based on the net value ( exclusive of VAT ) of each purchase made by it. The Bad Debt Reserve Fee shall be debited from the Buying Client’s Trade Account and shall be assigned to a reserve account against bad debt (“Bad Debt Reserve Account”), and shall be non-refundable.

5.4 All fees and charges, including Subscription Fee, Brokerage Fees and other charges to Clients by Tradefirst are in payment for services rendered in processing Clients into the Trade Exchange, operating brokerage functions and the clearing system for Tradecheques, maintaining records, advertising and promoting the products and services of the client, administering the Pool of Resources and administering these conditions.

5.5 Where pursuant to the provisions of Article 5.2 above Tradefirst has agreed with a Buying Client that it shall not be obliged to pay the Brokerage Fee until the Deferred Payment Date and in breach the Buying Client fails to pay the Brokerage Fee by the Deferred Payment Date, then the following provisions shall apply:

5.5.1 Compound Interest, at the rate of .5% per month or part thereof, shall accrue on the outstanding amount until such time as all outstanding Brokerage Fees have been discharged in full. For the avoidance of doubt interest shall be deemed to accrue from the date of issue of the Authorization Number in respect of the Trade in question or where no Authorization Number was requested by the Selling Client in respect of the Trade, interest shall be deemed to accrue from the date the Monthly Statement detailing that particular Trade was issued to the Buying Client.

5.5.2 The Buying Client’s Trade Account shall be suspended until such time as all outstanding fees have been discharged in full. Upon payment of outstanding fees the Buying Client shall be entitled to the benefit of all Trade Euros standing to the Credit of its Trade Account at the date of suspension.

5.5.3 remove it from the Trade Exchange and Tradefirst Membership listings;

(i) terminate the Buying Client’s membership with immediate effect (“Termination Date”), whether or not it has a positive or negative Trade Account;

(ii) remove it from the Trade Exchange and Tradefirst Membership listings;

(iii)  transfer all Trade Euros standing to the credit of the Buying Client’s Trade Account to the Bad Debt Reserve Account;

(iv)  sue the Buying Client for the Brokerage Fees, interest and all costs and legal expenses associated therewith.

5.5.4 Where, pursuant to Article 5.5.3, a Buying Client’s contract is terminated and at the Termination Date, the Buying Client had previously agreed with Tradefirst to supply goods and/or services to the Pool of Resources, the following provisions shall apply:

(i) Tradefirst shall have the right to call on the Buying Client to supply the goods or services to the Pool of Resources within 30 days of Termination Date.

(ii) If the Buying Client fails to supply the goods and/or services within the 30 day period, Tradefirst shall have, in order to protect and mitigate the loss to the Pool of Resources, the right to recover the full cost thereof from the Buying Client. In such circumstances the Buying Client shall reimburse all loss or damage and all costs, including legal expenses, resulting from same.

6. TRADE EUROS

6.1 Trade Euros shall only be used in the manner and for the purpose set out in these conditions. They shall not be considered legal tender, securities or commodities and shall not be redeemable for cash.

6.2 Ownership of Trade Euros gives the owner the right to receive goods and/or services made available to the Pool of Resources by other clients of Tradefirst up to the value of the Trade Euros standing to the credit of the Client’s Trade Account.

6.3 Tradefirst disclaims responsibility for the negotiability of Trade Euros other than in the context of a reciprocal trade purchase within the Trade Exchange.

7. TRADE EURO LOANS

7.1 Subject to Article 7.2. where a client has a negative balance on it’s Trade Account, for whatever reason, it shall be deemed to constitute a Trade Euro Loan due and owing by that Client to the Tradefirst Pool of Resources.

7.2 The exercise of this power to grant Trade Euro Loans shall be at the full discretion of Tradefirst with regard to the amount of Trade Euros which may be borrowed, conditions of lending, requirements for security, the nature of the goods or services pledged by the Client to the Pool of Resources and other particulars. Please note that for administrative purposes, applications for Trade Euro Loans may, at the discretion of Tradefirst, only be considered where Tradefirst has received a hard copy of this agreement duly executed by the applicant.

7.3 Clients who have Trade Euro Loans shall be required, at the request of Tradefirst, to provide to the satisfaction of Tradefirst collateral, such collateral to fully secure the Trade Euro Loan

7.4 For the avoidance of doubt Tradefirst shall be entitled to carry out such credit checks or other financial checks as it deems necessary to process a Clients application for a Trade Euro Loan and the Client irrevocably consents, by signing this application form to such enquiries being made.

7.5 A Client shall discharge its Trade Euro Loan by replacing goods and/or services into the Pool of Resources up to the value of the Trade Euro Loan. In this regard Tradefirst shall actively market the goods and/or services pledged by the Client to other Clients of Tradefirst.

7.6 Where goods and/or services, pledged to the Pool of Resources by a Client which has obtained a Trade Euro Loan, become obsolete or are no longer marketable, the Client shall be obliged to pledge alternative goods and/or services to the Pool of Resources to the satisfaction of Tradefirst.

7.7 Where a client has a Trade Euro Loan and refuses to supply goods or services either to Tradefirst on behalf of buying clients or to Tradefirst clients directly, Tradefirst shall have the right to terminate this agreement in accordance with the provisions of 18.2 hereof.

7.8 Where a Buying Client has obtained a Trade Euro Loan, and on the strength of that Trade Euro Loan, the Buying Client has purchased goods and/or services from the Pool of Resources, then with respect to:

7.8.1 the Goods purchased ( “the Goods “), “), title to them shall not pass to the Buying Client but shall remain with the Selling Client until such time as the Trade Euro Loan has been discharged in full, and generally the provisions of Article 7.8 shall apply; and

7.8.2 the services purchased, the provisions of Article 7.1.0 shall apply.

7.9 For the purpose of giving full effect for the provisions of Article 7.8.1 and without prejudice to the provisions of Article 4.3.5, the Selling Client hereby appoints Tradefirst as its agent for the purpose of exercising and enforcing the Selling Client’s rights of title to the goods against the Buying Client in the event that prior to the discharge in full of its Trade Euro Loan:

7.9.1 the Buying Client ceases to trade generally or ceases to trade in the goods which he or it has pledged to the Pool of Resources; or

7.9.2 being a corporate client, the Buying Client shall enter into liquidation whether compulsory or voluntary (not being a voluntary liquidation for the purpose of and followed by a reconstruction or amalgamation while solvent), receivership or examinership; or

7.9.3 being an individual, the Buying Client dies or shall become or be adjudged a bankrupt; or

7.9.4 the Buying Client enters into a scheme of arrangement with his or its creditors; or

7.9.5 the Buying Client does not renew his or its membership or his or its membership is terminated pursuant to Article 18.1. 

7.10 Where Tradefirst, as agent for the Selling Client , exercises the Selling Client’s rights of title to the goods and repossesses the Goods, the Goods shall be returned to the Pool of Resources.

7.11 Where a Buying Client has purchased services from the Pool of Resources, then for the purposes of protecting the Pool of Resources on the occurrence of any one of the events set out in Articles 7.9.1 to 7.9.5 above (“the Event”), the following provisions shall apply;

7.11.1 the Buying Client’s obligation to discharge the Trade Euro Loan shall subsist and remain valid, and, without prejudice to the Article 4.3.5, and shall remain enforceable by Tradefirst against the Buying Client until such time as the Trade Euro Loan is discharged in full.

7.11.2 If, within a period of 3 months of the date of the Event, the Trade Euro Loan has not been discharged in full, Tradefirst shall have the right to demand that the Client immediately pay Tradefirst the value of the outstanding Trade Euro Loan in cash.

7.11.3 If, within a further period of 30 days, the Client fails to discharge the value of the Trade Euro Loan in cash, Tradefirst shall have, in order to protect and mitigate the loss to the Pool of resources, the right to recover the full value thereof from the Client. In such circumstances the Client shall reimburse all loss or damage and all costs, including legal expenses resulting from same.

8. TRADING IN THE TRADE EXCHANGE

8.1 On acceptance into the Trade Exchange by Tradefirst, Clients shall be furnished with:

8.1.1 details of its Client Account and Trade Account.

8.1.2 Tradecheque Book for the Client’s exclusive use. A Client shall be responsible for all Tradecheques drawn on it’s Trade Account. Tradefirst shall not be responsible for the use of Tradecheques by unauthorized persons and shall not be obliged to honour a Tradecheque signed by such an unauthorized person or Tradecheques issued by other Trade Exchanges.

8.2 A Selling Client shall supply or pledge its goods and/or services and labour to the Pool of Resources at the prevailing cash price at the time of sale, unless otherwise agreed in writing between Tradefirst and the Selling Client.

8.3 Where Clients, by prior agreement between them, have negotiated a Trade for a partial cash payment Tradefirst shall be entitled to its Brokerage Fee and Bad Debt Reserve Fee on the non-cash portion of the Trade only.

9. PROCEDURE FOR COMPLETING A TRADE

9.1 Selling Client’s Obligations. In order to process a Trade the Selling Client shall be obliged:

9.1.1 to obtain an Authorization Number from Tradefirst before commencing the Trade;

9.1.2 to advise the Buying Client of the terms and conditions under which the goods and/or services are being supplied;

9.1.3 to obtain the Buying Client’s signature on a Tradecheque;

9.1.4 Subject to the provisions of Article 9.4, to furnish the Tradecheque to Tradefirst within 21 days of its issue.

9.2 Buying Client’s Obligations. Contemporaneous with the Selling Client performing its obligations the Buying Client shall be obliged:

9.2.1 to furnish the appropriate Brokerage Fee and the Bad Debt Reserve Fee to Tradefirst;

9.2.2 to execute a Tradecheque, subject to obtaining confirmation from Tradefirst that it has sufficient Trade Euros, in favour of the Selling Client in respect of the Trade.

9.3 Tradefirst’s Obligations. Tradefirst shall be obliged:

9.3.1 to issue, subject to Article 9.6, an Authorization Number to the Selling Client in respect of the Trade;

9.3.2 to clear, subject to there being sufficient Trade Euros in the Buying Client’s Trade Euros Account, the Tradecheque and debit the Buying Client’s Trade Account for the amount of the Tradecheque and the Bad Debt Reserve Fee;

9.3.3 to credit the Selling Client’s Trade Euros Account for the amount of the Tradecheque;

9.3.4 to refund to the Buying Client, in the event that a Trade does not proceed, it’s Brokerage Fee and Bad Debt Reserve Fee.

9.4 If the Tradecheque is not furnished to Tradefirst within the time prescribed in Articles 9.1.3 Tradefirst shall have the absolute right to reject the Tradecheque. Thereafter if no attempt is made by the Selling Client and the Buying Client to re-transact the Trade within a further 30 days, Tradefirst shall have the right to reverse the terms of the Trade in which event it shall be the responsibility of the Selling Client alone to obtain payment from the Buying Client directly in cash or in such other form.

9.5 If, pursuant to Article 9.4, the Trade is re-transacted between the Selling Client and the Buying Client within the 30 day period, an Authorization Number shall be issued for the Trade only when a Tradecheque is furnished to Tradefirst within 21 days of the date of the re-transacted Trade.

9.6 Tradefirst reserves the right to refuse to issue an Authorization Number in any of the following circumstances:-

9.6.1 If the Buying Client does not have sufficient Trade Euros or line of credit to make such a purchase.

9.6.2 If either party is not a Client in Good Standing.

9.6.3 If Selling Client seeks to obtain an Authorization Number after the commencement of a Trade, except where the provisions of Article 9.5 apply

9.6.4 If the payment of the Brokerage Fee has not been cleared by Tradefirst’s bankers.

9.7 Tradefirst shall have no responsibility to honour Authorization Numbers or Tradecheques issued due to misrepresentations, whether oral or written, misstatements or otherwise made by the Selling Client or the Buying Client and the Selling Client and Buying Client to a particular Trade shall keep Tradefirst harmless from all claims, debts or other liability whatsoever, arising out of such misrepresentation or misstatement.

9.8 Where the goods and/or services supplied by the Selling Client under a Trade are damaged, defective or otherwise unsuitable for the Buying Client’s purposes, the Buying Client’s rights shall be regulated by the Selling Client’s standard terms and conditions of sale per Article 4.3.2 hereof.

9.9 Where, pursuant to Article 9.8 a dispute arises between a Selling Client and a Buying Client, both parties shall be obliged to fully advise Tradefirst as to the terms of its resolution and shall advise Tradefirst in writing as to whether amendments to their respective Trade Accounts are to be made.

10. VOUCHERS

10.1 Tradefirst shall not be obliged to accept vouchers, scripts or other forms of indirect payment in respect of goods or services in lieu of direct sale and purchase transactions between buying and selling clients, except where the issue or sale of vouchers is the primary activity of the clients business and it is clear that transactions cannot be facilitated any other way.

10.2 Where a client has a Trade Euro Loan, subject to the provisions of 10.1, the supply or issuing of vouchers as an alternative payment method to discharge the loan will not be acceptable and shall constitute a refusal to supply subject to the provisions of 18.2 hereof.

10.3 Where Tradefirst requests vouchers to be furnished pursuant to Article 10.1 the following conditions shall apply:

10.3.1 the vouchers shall be irrevocable;

10.3.2 vouchers shall be printed in a format and shall have an expiry date to the satisfaction of Tradefirst;

10.3.3 the vouchers shall contain no conditions, unless otherwise agreed in writing by Tradefirst;

10.3.4 Tradefirst shall hold such vouchers as bailee only for the Client, and for the avoidance of doubt such issuing to Tradefirst shall not constitute a sale to the issuing Client until such time as another or other clients purchase the vouchers pursuant to a Trade.

11. SUSPENSION OF TRADING PRIVILEGES

11.1 In addition to Tradefirst’s rights to suspend a Client’s Trade Account pursuant to the provisions of Articles 5.1.3 and 5.5.2 hereof, Tradefirst also reserves the right to suspend a Client’s Trade Account where such Client:

11.1.1 refuses to supply to the Pool of Resources on an ongoing basis goods and/or services which it had previously agreed with Tradefirst to supply to the Pool of Resources; or

11.1.2 damages the good will of Tradefirst or the Trade Exchange; or  

11.1.3 otherwise violates the terms and conditions hereof.

11.2 Tradefirst shall notify the Client in writing that it’s Trade Account shall stay suspended from the date stipulated therein by Tradefirst (“Suspension Date”) until such time as the breach is remedied by the Client to the satisfaction of Tradefirst.

11.3 Once the breach has been remedied to the satisfaction of Tradefirst the Client shall be entitled to the benefit of all Trade Euros standing to the credit of its Trade Account at the Suspension Date.

11.4 If, after a period of 3 months from the Suspension Date, the breach remains unremedied to the satisfaction of Tradefirst, Tradefirst shall be entitled to:

11.4.1 terminate the Client’s membership with immediate effect (“Termination Date”), whether or not it has a positive or negative Trade Account;

11.4.2 remove the Client from the Trade Exchange; and

11.4.3 transfer all Trade Euros standing to the credit of the Client’s Trade Account to the Bad Debt Reserve Account.

11.5 Where a Client’s membership is terminated and at the Termination Date, the Client had previously agreed with Tradefirst to supply or pledge goods and/or services to the Pool of Resources, the provisions of Articles 5.5.4 shall apply save however that “Client” shall be substituted for “Buying Client” wherever appearing therein.

12. MANAGEMENT OF POOL OF RESOURCES

12.1 Tradefirst shall manage and administer the pool of Resources for the benefit of the Pool of Resources itself and the Clients of Tradefirst.

12.2 In order to ensure the continuous quality and variety of the goods and services contained in the Pool of Resources and in order to enhance the Pool of Resources generally, Tradefirst shall be entitled to remove such goods or services from the Pool of Resources, which it considers to be unmarketable in the Trade Exchange, and to sell such goods and/or services in the open market for cash or to other Trade Exchanges in exchange for other goods and/or services. In such circumstances Tradefirst shall be acting in the capacity of a Buying Client and shall be entitled to raise it’s own Trade Euro Loan for this purpose.

13. RECORD KEEPING AND ERRORS

13.1 Tradefirst shall issue to every Client on the first business day of each month a monthly statement of account (“Monthly Statement”) which shall set out

13.1.1 the balance of Trade Euros, whether positive or negative, standing in the Client’s Trade Account; and

13.1.2 details of all Subscription Fees and Brokerage Fees paid by the Client to date and those remaining outstanding.

13.2 A Client shall be obliged to inform Tradefirst in writing by the fourteenth (14) day of each month if the Monthly Statement has not been received by it.

13.3 A Client’s Monthly Statement will be deemed to be binding as at the date of issue, except in the case of manifest error, unless Tradefirst is notified of any discrepancies within twenty-one (21) days of issuance of the Monthly Statement.

14. TAXES

14.1 Provided the Selling Client is registered for VAT, it shall charge Value Added Tax on goods and/or services provided under a Trade and shall collect and record such sums on a normal VAT invoice at the time of the Trade.

14.2 Tradefirst shall not be responsible to pay or collect any Value Added Tax or other taxes on behalf of a Client.

14.3 The declaration, reporting and payment of all applicable taxes resulting from or connected with a Trade shall be the sole responsibility of Clients. In no circumstances shall Tradefirst bear any liability for same.

15. ADDITIONAL BUSINESS LISTINGS

15.1 Clients having more than one business may be listed under additional trade categories at an additional charge of €200.00 (plus VAT at the then prevailing rate) per annum.

16. ASSIGNMENT OF ACCOUNT

16.1 A Client’s Trade Account or Client Account shall not be assignable or transferable without Tradefirst’s express prior written consent.

17. PLACING OF CLIENT TRADE ACCOUNT ON SUSPENSION

17.1 A Client can request that its products or services be temporarily unavailable to Tradefirst or other Tradefirst members under the following conditions:-

17.1.1 the Trade Account must have a positive Trade Euro balance; and

17.1.2 tthe Client must give 21 working days notice in writing to Tradefirst.

17.2 Subject to Article 17.3 the maximum period for which a Trade Account may be placed on suspension is 3 months or the unexpired term between the date is placed on standby and the Renewal Date, whichever is the shorter, and the Trade Account shall automatically cease to be on standby as and from the expiration of the 3 month period or the Renewal Date, as the case may be.

17.3 A Client shall only be entitled to place its Trade Account on suspension for a maximum period of 6 months in any continuous 24 month period.

17.4 The Client shall give 10 working days notice to Tradefirst of its request that the Trade Account is to be no longer held on suspension.

18. TERMINATION

18.1 Automatic Termination. Where a Client commits a fraud against Tradefirst or other Clients of Tradefirst, or makes any voluntary arrangement with its creditors or enters into examinership or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or if an encumbrancer takes possession or a receiver is appointed over any of its property or assets or the Client is unable to pay its debts or it ceases to carry on its business then Tradefirst shall be entitled to automatically terminate it’s membership of the Trade Exchange.

18.2 Refusal to supply goods or services:  Where a client, subject to the provisions of 17.1 to 17.4 hereof, refuses to supply goods or services to either Tradefirst on behalf of a buying client or to a buying client directly, Tradefirst shall be entitled to terminate it’s membership of the Trade Exchange with immediate effect.

18.3 Termination by Agreement. A Client may terminate its membership of the Trade Exchange upon the giving of twenty-one (21) days’ written notice to Tradefirst.

18.4 Consequences of Termination. Immediately upon termination, all cash and outstanding fees shall become due and payable and in particular if a client has a Trade Euro Loan, the provisions of 7.6 to 7.11 hereof shall apply as appropriate.

18.5 If a Client has a positive Trade Euro balance (sales exceed purchases), the Client may stay active and spend the balance in the Trade Exchange in accordance with these terms and conditions.

19. AMENDMENT OF TERMS AND CONDITIONS

19.1 Tradefirst may change the terms of this Agreement from time to time by giving the Client thirty (30 days) prior written notice.

19.2 Failure to give Tradefirst written notice of objection thereto within such thirty (30) day period shall be deemed to be acceptance of the change by the Client.

19.3 Purchases or sales after the thirty (30) day notice period shall constitute acceptance of the new terms.

19.4 All changes to the Agreement shall be in writing and shall be signed by a director of Tradefirst.

19.5 Where a Client objects to a proposed material amendment of the Agreement by Tradefirst, as distinct from a mere technical amendment, it shall have the right to terminate the Agreement by agreement and the provisions of Articles 18.4 or 18.5 shall apply, as appropriate.

20. ARBITRATION

20.1 Mediation of Principals. If and whenever a dispute arises between Tradefirst and a Client concerning the terms and conditions hereof, the dispute shall in the first instance be discussed by the parties.

20.2 If the discussions envisaged by sub-article 19.1 do not, within a period of 14 days achieve a resolution of the dispute, the same may be referred by any party to a Senior Counsel practicing from the Law Library, Dublin, to be agreed within 14 days by the parties, who shall act as an arbitrator, or, in default of agreement, to such a Senior Counsel to be appointed, on the application of any party by,

20.2.1 the President (or other officer endowed with the functions of such President) of the Law Society of Ireland; or

20.2.2 should the President (or other officer as aforesaid be unwilling or unable to make the nomination) by the next senior officer of such Society who is willing and able to make the nomination.

20.3 As Tradefirst is functioning in a brokerage capacity and as a third party record keeper only, it shall be held harmless in respect of any liability issue arising between Clients.

21. ADVERTISING

21.1 Unless otherwise agreed between a Client and Tradefirst, the Clients hereby authorize Tradefirst to notify and advertise to other Clients the availability of Client’s goods and/or services and to promote those goods and services on the Tradefirst web sites, Newsletters, Email marketing, Public social media platforms and any promotional material.

21.2 Unless otherwise agreed between a Client and Tradefirst, the Clients authorize Tradefirst to include their names in membership lists prepared by Tradefirst from time to time and circulated by it to potential new Clients.

22. SEVERABILITY

The various provisions of this contract are severable and if any provision is held by any court of competent jurisdiction to be invalid or unenforceable such invalidity or unenforceability shall not effect the other provisions of these conditions.

23. LAW AND JURISDICTION

23.1 The Agreement shall in all respects be construed in accordance with the laws of Ireland and it is agreed by the Client and Tradefirst that each shall submit to the jurisdiction of the Irish courts.

23.2 The Client acknowledges and agrees that all of the restrictions and obligations imposed on it are reasonable and valid and hereby waives any and all defenses to the strict enforcement thereof.

23.3 A waiver by either party of any breach by the other party of any of the terms provisions or conditions of the Agreement or the acquiescence of such party in any act (whether of commission or omission) which but for such acquiescence would be a breach as aforesaid shall not constitute a general waiver of such term provision or condition or of any subsequent act contrary thereto.

23.4 Any notice or other communication whether required or permitted to be given hereunder shall be given in writing and shall be deemed to be duly given if delivered by hand to the addressee or his duly authorization agent or if sent by prepaid registered post addressed to the party to whom such notice is to be given at the address set out for such party herein (or such other address as such party may from time to time designate in writing to the other party hereto in accordance with the provisions of this Article). Any such notice shall be deemed to have been duly given (i) if delivered at the time of delivery, (ii) if sent by fax or electronic mail is received by the addressee and (iii) if sent by prepaid registered post as aforesaid 48 hours after the same shall have been posted.

24. CLIENT WARRANTY

The Client warrants that it has provided all relevant information to Tradefirst in good faith and that such information is true and accurate.

25. ASSIGNMENT

Tradefirst may assign its rights and /or obligations hereunder without the consent of the Client provided that Tradefirst shall after such assignment notify the Client of such assignment.