Terms and Conditions
1 INTERPRETATION
a) The definitions and rules of interpretation in this condition apply in these conditions.
i) Buyer means the company, firm or person who places an order with the Company or otherwise agrees to buy from the Company any of the Goods.
ii) Company shall mean Martello
iii) Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
iv) Goods shall mean any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
v) Partner shall mean a partner of Martello (Partners: K.J Hutchins, A.J Hutchins, J Hutchins, N Hutchins)
b) A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
c) Words in the singular include the plural and in the plural include the singular.
d) A reference to one gender includes a reference to the other gender.
e) Condition headings do not affect the interpretation of these conditions.
2 APPLICATION OF TERMS
a) Subject to any variation under condition 2(b) the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
b) These conditions apply to all the Company's sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Partner of the Company.
The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
c) Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
e) The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
f) Any quotation provided by the Company for the Buyer, unless otherwise stated in writing, shall expire after 30 days.
h) The Company reserves the right to vary these Terms and Conditions and will give the Buyer 30 days' notice of any material changes.
3 PRICES
a) The price shall be that ruling according to the Company's price list for the Goods, in force at the date of despatch or that agreed by the Company and the Buyer in writing.
b) The price quoted Excludes VAT (unless otherwise stated). VAT and other taxes and duties on the goods will be those applying at the time of delivery.
c) The Buyer shall be liable for any increase in price or expenses incurred by the Company arising out of any delay caused by the Buyer.
d) The Company reserves the right to alter prices without prior notice to reflect variations in the Company's own costs of materials, fuel and labour.
4 TERMS OF PAYMENT
a) The Buyer must pay The Company by debit card or cleared funds before delivery, unless there is an approved credit account.
b) Where the Buyer has an account, payment shall be made on or before 30 days following date of invoice (unless otherwise agreed by The Company).
c) If credit facilities are agreed between the parties, and the Buyer exceeds the agreed level of credit, the excess shall be payable immediately.
d) If payment made from the Buyer to the Company does not clear the bank, the Company may pass on a £10 fee to the Buyer, for every time payment fails to clear.
e) If payment by the Buyer is delayed, the Company may:
i) suspend the delivery or supply of Goods or services due to the Buyer
ii) pass on to the Buyer all debt recovery expenses including but not exclusive to debt collection costs from a debt collection agency, tracing costs in relation to finding a Buyer that has absconded from the address given in the Credit Application and legal costs.
iii) charge late payment interest and compensation consistent with the Late Payment of Commercial Debts Regulations 2002.
f) The Company may at its absolute discretion set or alter the Buyers credit limit.
g) No payment shall be deemed received until the Company has received cleared funds.
h) All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
i) The Buyer shall make all payments due under the Contract in full, without any deduction, whether by way of setoff, counter-claim, ‘accord and satisfaction’ discount, abatement, or otherwise, unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
5 LEGAL OWNERSHIP
a) The property in and title to Goods supplied by the Company shall remain within the Company until:
i) the Buyer shall have paid the price plus VAT in full and
ii) no other sums whatever shall be due from the Buyer to the Company.
b) The Buyer grants the Company, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
c) It will be assumed that where the Buyer purchases similar goods from the Company on a regular basis that a stock rotation system has operated and Goods still held relate to invoices still outstanding for which full payment and VAT hasn’t been made.
6 RISK
a) Where a third party carrier is used to deliver the Goods the Risk in the Goods shall pass to the Buyer at the moment when the Goods leave the Company's premises and the risk shall remain the Buyer's regardless of whether the Goods have been received by the Buyer.
b) Until ownership of the Goods has passed to the Buyer (and provided that the Goods are in existence and have not been resold) the Buyer must:
i) hold the Goods on a fiduciary basis as the Company's bailee;
ii) keep the Goods separate from those of the Buyer and third parties;
iii) keep the Goods properly stored, protected, insured and identified as those of the Company; and
iv) hold the proceeds of the insurance referred to in condition 6(b)(ii) on trust for the Company and not mix them with any other money, or pay the proceeds into an overdrawn bank account but the Buyer may resell or use the Goods in the ordinary course of its business.
c) The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
i) any sale be effected in the ordinary course of the Buyer's business at full market value; and
ii) any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale
d) The Buyer's right to possession of the Goods shall terminate immediately if the Buyer does any act or omission whereby the Buyer;
i) has a bankruptcy order made against him; or
ii) in the case of a corporate Buyer may be wound-up, or enter into a compromise or arrangement under the Insolvency Act 1986 or suffer the appointment of an administrator or receiver.
iii) encumbers or in any way charges any of the Goods.
7 SPECIFICATION
a) The Company shall not be under any liability in respect of description or specification or other matters in relation to the Goods contained in any material such as price lists, catalogues, trade publications and advertising matter other than in the contract itself.
b) The Company reserves the right without notice and without affecting the validity of the contract to make such changes in materials, dimensions and design as are reasonable.
c) The product sizes displayed on the website are approximate and we will not be held liable for innacuracies
8 INFORMATION AND ADVICE
a) Advice, information and opinion given by any Partner, Employee or Agent of the Company is given without legal responsibility.
b) Any recommendation or suggestion made by the Company relating to the use of Goods, whether in technical literature or in response to specific enquiry, is made in good faith, but it is for the Buyer to satisfy himself of the suitability of the Goods for his particular purpose, and shall be deemed to have done so.
9 LIMIT OF LIABILITY
a) Subject to 6, and condition 8, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
i) any breach of these conditions;
ii) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
iii) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
b) All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
c) Nothing in these conditions excludes or limits the liability of the Company:
i) for death or personal injury caused by the Company's negligence; or
ii) under section 2(3), Consumer Protection Act 1987; or
iii) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
iv) for fraud or fraudulent misrepresentation.
d) Subject to condition 10.b and condition 10.c:
i) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
ii) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10 DELIVERIES
a) Any time named by the Company for the delivery of its Goods is an estimate only, and while every effort will be made to deliver on time the Company will not be liable for any consequences of a delay in delivery.
b) In the case of damage in transit or short deliveries, notice of damage or shortage must be received in writing within 48 hours of invoice date.
c) The price payable for delivery is as stated in the Company’s catalogue, unless otherwise agreed, and subject to change from time to time.
d) The Company shall not be liable for any non-delivery of Goods.
11 QUERIES ON INVOICES
a) Any queries on invoices or proof of delivery requests must be made in writing by the buyer to the company within 5 days of receipt of invoice, it is not acceptable to have a query or request a proof of delivery when payment becomes due.
12 RETURNS
a) The Company is not obliged to accept return of goods for credit where they have been correctly supplied. Where the Company voluntarily accepts a return, a handling charge may be applied. No credit will be given unless goods are returned to our depot in perfect resalable condition with a copy of the invoice under which they were supplied.
13 WARRANTIES
a) The Company warrants that the goods comply with their description on our acknowledgement of order and are free from material defect at the time as long as The Buyer inspects the goods at time of delivery.
b) If the buyer believes that the company have delivered goods which are defective in materials or workmanship
i) The buyer must inform the Company in writing, with full details within 48 hours of delivery of goods.
ii) The buyer must allow the company to investigate (which may include access to your premises and product samples). If the goods are found to be defective in material or workmanship (following our investigation and you have complied with conditions above in full) the company may replace the goods or refund the money.
c) The company is not liable for any other loss or damage (including indirect or consequential loss, financial loss, loss of profits or loss of use) arising from the contract of the supply of goods or their use. The company liability is limited in damages to the price of the goods
14 FORCE MAJEURE
a) The Company shall not be liable to the Buyer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company's reasonable control.
15 USE OF PERSONAL INFORMATION
a) We may pass information about the Buyer to our agents and service providers to search files of credit reference agencies to help administer any accounts, services and products provided by the Company, now or in the future.
b) We may share information about how the Buyer deals with his accounts with other financial institutions, and with credit agencies to detect fraud or recover loss. It may also be used to inform the Buyer about services and products which may be of interest to them unless requested otherwise.
c) When a credit account is applied for with the Company, we may check the following records relating to the Buyer:
i) Our own records
ii) Records held by Credit Reference Agencies, who, when they receive a search request from the Company, may leave a search footprint on your personal credit file (including Company Director), that may be seen by other Lenders/Organisations. These agencies supply both public (including the electoral register) and shared credit and fraud prevention information. Such information may be used for assessing applications, verifying identity to prevent crime and money laundering. The Company may also make periodic searches at such agencies to manage the credit account with us. The Buyers data may also be used for other purposes when required by law or where permitted under the terms of the Data Protection Act 1998.
iii) Records held by other suppliers of The Buyer.
16 LAW
a) This contract shall be governed and construed in accordance with the Laws of England.
17 THE BUYER ACCEPTS THESE TERMS AND CONDITIONS OF SALE AND IS AUTHORISED TO SIGN ACCEPTANCE ON BEHALF OF THE BUYER.
THESE CONDITIONS APPLY WITH EFFECT FROM 1st JANUARY 2012 AND SUPERSEDE ALL PREVIOUS CONDITIONS ISSUED BY K&A HUTCHINS T/A MARTELLO
