Terms and Conditions
MARTHWAITE JOINERY LIMITED
TERMS AND CONDITIONS OF SALE OF GOODS AND SUPPLY OF SERVICES
1.1 In these Terms:
"Buyer" means the person who accepts the Seller's written quotation for the sale of the Goods and supply of Services or whose written order for the Goods and Services is accepted by the Seller
"Consents" means all permissions and consents (including if necessary planning permissions from Landlords, Local Authorities and others)
"Contract" means the contract for the sale and purchase of the Goods and Services
"Goods" means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms
"Preparatory Work" means the removal of all items necessary to allow the Seller to perform the Services and the covering and protection of all fixtures and fittings which cannot be removed
"Seller" means the Company
"Services" means the services to be provided by the Seller to install the Goods in accordance with these Terms
"Terms" means the standard terms and conditions of sale and supply set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Buyer and the Seller
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 The Seller shall sell and supply, and the Buyer shall purchase, the Goods and Services in accordance with the Seller's written quotation (if accepted by the Buyer), or the Buyer's written order (if accepted by the Seller), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Terms shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in this Contract. Nothing in these Terms shall exclude or limit the Seller's liability for fraudulent misrepresentation.
2.4 No terms or conditions endorsed on delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.5 Each order or acceptance of a quotation for Goods and Services by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods and Services subject to these Terms.
2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.7 All quotations (which are invitations to treat only) made by the Seller are subject to these Terms.
2.8 Any samples, drawings, description matter, specifications and advertising submitted by or on behalf of the Seller and any descriptions or illustrations are intended only to indicate the general and approximate character of the Goods and the Buyer shall have no claim if that supplied fails to correspond and this is not a sale by sample.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller's authorised representative. Each acceptance by the Seller's authorised representative shall constitute an individual legally binding contract.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods and Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and Services and any specification for them shall be as set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. PRICE OF THE GOODS
4.1 The price of the Goods and Services shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price determined in relation to time and materials used in carrying out the work. All prices and other terms quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving written notice to the Buyer at any time before delivery, or performance to increase the price of the Goods and Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities, alterations in design or specification for the Goods and Services which is required by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated in the Seller's written quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller's premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller and all payments shall be in sterling.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller may invoice the Buyer for the price of the Goods and Services on or at any time after delivery of the Goods and performance of the Services, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods or fails to allow performance of the Services, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection, tendered delivery of the Goods, or Services are ready to be performed but performance has been unreasonably delayed by the Buyer.
5.2 If agreed by the Seller and Buyer in the Contract, the Buyer shall pay for the Goods and Services by instalments on dates specified in the Contract.
5.3 The Buyer shall pay the price of the Goods and Services in full or by instalments (where agreed) within 30 days of the date of the Seller's invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery and/or performance may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Payment is only made when the Seller has cleared funds or cash for the full amount of the Goods and Services. All payments must be made in the currency of the invoice.
5.4 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
5.4.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such of the Goods and Services (or the Goods and Services supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.4.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per annum above the Bank of England Base Rate from time to time, accruing on a daily basis until payment in full is made. The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.5 The Buyer shall not be entitled to withhold payment of any amount payable to the Seller because of any disputed claim of the Buyer in respect of Goods and Services or delivery or otherwise or any alleged breach of contract nor shall the Buyer be entitled to set off or to counter-claim against any amount payable to the Seller.
5.6 Where any delivery or carriage or packing charges are included and/or stated separately and are payable by the Buyer then on default in payment by the Buyer the same shall nevertheless remain due and payable by the Buyer as if they formed part of the price.
5.7 Where any payment is received by the Seller which is on account or otherwise is not allocated to a particular invoice then the Seller shall be entitled as and when and how it sees fit to allocate such payment and unless and until so allocated shall not be treated as payment in respect of all or part of any particular invoice of Goods and Services.
6. DELIVERY AND PERFORMANCE
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises or at the location of manufacture (if different) at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 The Buyer shall allow the Seller to carry out any prior inspection of the premises where the Services are to be performed.
6.3 If any Services are to be provided by the Seller then these shall be performed at premises specified in the Contract.
6.4 The Buyer shall co-operate with the Seller in arranging and performing the Services during normal working hours.
6.5 All Preparatory Work to enable the Services to be performed shall be carried out by the Buyer prior to performance of the Services. The Seller will not be liable for accidental damage caused to unprotected possessions.
6.6 All necessary Consents must be obtained by the Buyer prior to performance of the Services. For the avoidance of doubt, the cost of obtaining the consents shall be the sole responsibility of the Buyer.
6.7 Any dates quoted for delivery of the Goods and/or performance of the Services are approximate only and the Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of the Goods and/or performance of the Services however caused, nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days. Time for delivery and performance shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller and the Services may be performed in advance of the quoted delivery and performance dates on giving reasonable notice to the Buyer.
6.8 If the Seller fails to deliver the Goods or fails to perform the Services for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is liable to the Buyer in accordance with these Terms, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods and Services to replace those not delivered or performed over the price of the Goods and Services which liability may be satisfied by a credit note.
6.9 If the Buyer fails to take delivery of the Goods, fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of the Seller's fault) or fails to co-operate with the Seller in arranging and performing the Services then, without limiting any other right or remedy available to the Seller, the Seller may:
6.9.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
6.9.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and maintain them in a satisfactory condition.
7.4 Upon any sale by the Buyer of any of the Goods the Buyer shall hold all rights which may have against the purchaser thereof upon trust for the Seller.
7.5 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Buyer's right to possession has terminated, to recover them.
7.6 The Buyer shall be entitled to recover the price of the Goods and VAT and other charges notwithstanding that property in any Goods has not passed from the Seller.
8. WARRANTIES AND LIABILITY
8.1 Subject to the following provisions the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from delivery.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval;
8.2.3 the Seller shall be under no liability for timber that does not match in colour;
8.2.4 the Seller shall be under no liability in respect of any natural movement, distortion, warping, swelling or splitting or discolouration of timber;
8.2.5 the Seller shall be under no liability under the above warranty if reasonable care and maintenance is not carried out on the Goods by the Buyer;
8.2.6 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.7 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller;
8.2.8 the Seller shall be under no liability under the above warranty for any items exposed to weathering that have been supplied without primer or a basecoat;
8.2.9 in relation to any items that have been supplied with primer or a basecoat, but which are subsequently exposed to weathering, the period of warranty shall be reduced from 12 months to four weeks.
8.3 Subject as expressly provided in these Terms, and except where the Goods and Services are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977, Unfair Terms in Consumer Contracts Regulations 1999 or any other applicable law), all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods and Services are sold and supplied under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Terms.
8.5 A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller in writing within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms the Seller shall be afforded a reasonable opportunity of inspection before use and/or the Seller may repair and/or replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by the Seller's negligence, or liability (if any) for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, or for loss of profit or for any direct, indirect, special or consequential loss (all of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss) or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and Services (including any delay in supplying or any failure to supply the Goods and Services in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract and whether in contract, tort (including negligence or breach of statutory duty) misrepresentation, restriction or otherwise shall not exceed the price of the Goods and Services, except as expressly provided in these Terms.
8.8 The Seller 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 the Seller's obligations in relation to the Goods and Services, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade disputes, (whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.
and the Seller may in any such circumstances cancel the Contract without liability for so doing.
9.1 If a claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim rises from the use of a drawing, design, or specification supplied by the Buyer (whether written or otherwise), the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with the claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept the claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld)
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
9.1.6 without limiting any duty of the Buyer at common law, the Seller may require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
10.1 This clause 10 applies if:
10.1.1 the Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business, or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly, or
10.1.5 the Buyer shall commit any breach of any of the terms of the Contract (including but not limited to those as to payment) provided that if such breach is remediable the Seller has previously given the Buyer notice thereof and the same has not been remedied within seven days.
10.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend or cancel any further deliveries under the Contract without any liability to the Buyer, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and the authority to resell the Goods shall automatically cease and if not paid the Seller may at its option at any time repossess the Goods.
11.1 A notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and in the case of posting shall be deemed to have been given on the second working day after the same was posted pre-paid first class post.
11.2 No failure or delay in enforcing and no waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 The Seller may assign the Contract in whole or in part to any person, firm or company. The Buyer shall not be entitled to assign the Contract or any part of it.
11.4 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
11.5 Save as expressly provided herein none of the provisions of this Agreement is intended to or will operate or confer any benefit (pursuant to the Contracts (Rights of Third Parties) Act 1999) on a person who is not named as a party to these Terms.
11.6 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.