Terms and Conditions of Sale
- These terms and conditions govern the offering, sale and supply of goods by E.A. Martin & Son Ltd (hereinafter called “The Company”) to an individual person and/or a representative of a business entity. (Hereinafter called “The Customer.”)
1.1 Unless to the extent explicitly otherwise agreed in writing by authorised representatives of Company, the Conditions constitute the entire understanding between Company and Customer with respect to the subject matter hereof, and supersede all prior representations, negotiations, understandings, agreements and undertakings, whether written or oral, with respect to the subject matter hereof.
1.2 Any communication or conduct of Customer which confirms an agreement for the delivery of Goods by Company, as well as acceptance by Customer of any delivery of Goods from Company shall constitute an unqualified acceptance by Customer of these Conditions.
1.3. The Conditions prevail at all times over the order or purchasing terms and conditions of Customer even when the latter (i) were communicated to Company prior to the communication of the Conditions to Customer; (ii) explicitly exclude the applicability of the Conditions and/or (iii) were not protested by Company.
1.4 Company shall be entitled to update and/or amend these Conditions regularly and by and as of the moment of notifying Customer of such update or amendment or by sending Customer the updated or amended Conditions, these revised Conditions shall apply to all dealings between Company and Customer.
2. Quotations, orders and contracting
2.1 Quotations issued by Company (in whatever form) are not binding upon Company, are revocable and subject to change without notice. Orders are not binding until accepted by Company. Company shall be entitled to refuse an order without indication of its reasons. Each delivery shall stand as a separate transaction and any failure to deliver shall have no consequences for other deliveries.
3. Delivery and acceptance
3.1 Unless otherwise set out and accepted in writing by Company, all deliveries of Goods shall be delivered to Customer. (Incoterms 2010 - DAP). Customer shall accept the Goods upon delivery.
3.2 Goods are delivered in the packaging as determined by Company. Company will assume you have accepted the goods three business days after they have been delivered unless you tell us about any complaints within that period. Also, if you, your agents, employees or licensees have used the goods, we will count this as accepting the goods.
3.3 Unless otherwise set out and accepted in writing by the Company, any times or dates for delivery by Company are estimates and shall not be of the essence. In no event shall Company be liable for any delay in delivery. Delay in delivery of any Goods shall not relieve Customer of its obligation to accept delivery thereof, shall not justify a price reduction nor a claim for damages. Company is entitled to deliver the Goods in parts and to invoice separately.
3.4 In the case of delivery by a Company vehicle, the Customer and the driver of the Company vehicle shall carry out a thorough examination of the goods, and if satisfied with the state of the goods the Customer shall sign for the same. Once the Customer has signed for the goods, no subsequent claim for or damage to the goods will be entertained by the Company.
4. Transfer of risk and property
4.1 The risk on all goods shall pass to the Customer immediately on the goods having been signed for on behalf of the Customer.
4.2 However, notwithstanding delivery and the passing of risk in the Goods, title and property in the Goods, including full legal and beneficial ownership, shall not pass to Customer until Company has received in cash or cleared funds payment in full for all Goods delivered to Customer under this and all other contracts between Company and Customer for which payment of the full price of the Goods thereunder has not been paid. Payment of the full price of the Goods shall include the amount of any interest or other sum payable under the terms of this and all other contracts between Company and Customer under which the Goods were delivered.
5. Prices and payment
5.1 The prices of the goods shall be the prices as at the date of delivery, as per the priced delivery docket, and where applicable any value added tax payable in respect of the goods supplied under these terms and conditions will be borne by the Customer.
5.2 In the event the prices and rates are denominated in Euro and the Euro has ceased to be a lawful currency (either in part or as a whole), the prices and rates for the Goods as well as any other amount referred to in the present general terms and conditions will be automatically converted into Great British Pounds (GBP) using the exchange rate EUR/GBP effective the day before the Euro has ceased to be a lawful currency. In the event the conversion to GBP is not possible Customer shall indemnify Company for any loss suffered.
5.3 Payment of all sums due to the Company shall be made within a period of 30 days commencing on the first day of the month after which the relevant invoice is dated, unless otherwise agreed in writing between the parties.
5.4 In the event invoices are not paid by their due date, without prejudice to any other rights or remedies of Company, Company will automatically charge the Customer(a) interest on overdue amounts, without prior notice, at a rate equal to the Reference Interest Rate applied by the European Central Bank plus eight (8) percentage points.
The applicable Reference Interest Rate is the European Central Bank's main refinancing rate. Outside the Euro zone the rate is set by the relevant national central bank. The reference rate on 1st January applies until 30 June while the reference rate of 1st July applies until 31 December; (b) the judicial and extrajudicial costs (including but not limited to collection agency and legal fees) and incurred by Company in relation to the collection of the outstanding amounts due.
A minimum fixed amount equivalent to £50 will always be charged as compensation for recovery costs.
(c) In case the European Central Bank’s Reference Interest Rate ceased to be a lawful reference interest rate, the total interest on overdue amounts will amount to 8%.
5.8 At all times Company has the right without prior acceptance by Customer, to introduce a Minimum Order Value (“MOV”) which may differ depending on the nature and amount of Goods purchased by Customer and/or impose a minimum charge for delivery of the Goods to the Customer.
6. Conformity, warranty and liability
6.1 On delivery and during the handling, use, processing, transportation, storage and sale of the Goods (the "Use"), Customer shall examine the Goods and satisfy itself that the Goods delivered meet the specifications for the Goods agreed in writing or, in the absence thereof, to the most recent specifications, if any, held by Company at the time of delivery of the Goods ("Specifications"). Complaints about the Goods shall be made in writing and must reach Company not later than three (3) days from the date of delivery. Use of the Goods shall be deemed to be an unconditional acceptance of the Goods and a waiver of all claims in respect of the Goods.
6.2 Company solely warrants that on the date of delivery the Goods shall conform to the Specifications. If and to the extent Goods fail to meet such warranty, Company may at its own option either repair or replace the Goods at no charge to Customer, or issue a credit for any such Goods in the amount of the original invoice price.
6.3 The foregoing warranty is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for any purpose, or absence of infringement of any claim in any intellectual property right covering the Goods.
6.4 To the maximum extent permitted by applicable law, Company's total liability for any claim, liability or expense of any nature shall not exceed the sum of Customer’s payments for the portion of the Goods that are the subject of the claim. Company shall not be liable for any indirect, special, incidental or consequential damages of any kind including, without limitation, disruption of the business, claims from third parties, damages due to business interruption or lost profits, loss of savings, of competitive advantage or of goodwill whether or not foreseeable, and regardless of other cause of such damages even if the party has been advised of the possibility of such damages in advance under any legal theory (tort, contract or otherwise), to the maximum extent permitted by applicable law.
7. Information and changes
7.1 Customer acknowledges that data in Company's catalogues, specification sheets and other descriptive publications distributed or published on its website, may be varied from time to time without notice. Any statement, representation, recommendation, advice, sample or other information of Company in relation to the Specifications, the Goods and the Use thereof shall be furnished for the accommodation of Customer only. Customer shall be deemed to have satisfied itself as to such matters prior to ordering the Goods. All product images on the E.A. Martin & Son Ltd Website are for illustration purposes only.
8. Suspension and termination
If:
8.1 Customer is in default of performance of its obligations towards Company:
8.1.1 Company has reasonable doubts with respect to Customer’s performance of its obligations to Company and Customer fails to provide to Company adequate assurance of Customer’s performance before the date of scheduled delivery and in any case within thirty (30) days of Company’s demand for such assurance;
8.1.2 Customer becomes insolvent or is unable to pay its debt or goes into liquidation or any bankruptcy proceeding shall be instituted by or against Customer or if a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Customer or if Customer enters into a deed of arrangement or makes any assignment for the benefit of its creditors, without prejudice to any other rights and/or remedies of Company, Company may by notice in writing forthwith;
8.1.3 Demand re-delivery and take repossession of any delivered Goods which have not been paid for, for which purpose Customer hereby grants an irrevocable right and licence to Company to enter upon all or any of the premises where the Goods are or may be located and all costs relating to the recovery of the Goods shall be for the account of Customer; and/or
8.1.4 Suspend its performance or terminate Company’s Confirmation for outstanding delivery of Goods unless Customer makes such payment for Goods on an in advance basis or provides adequate assurance of such payment for Goods to Company, without any intervention of courts being required and without liability for Company of whatsoever kind arising out of or in connection with such suspension or termination.
8.2 In any such event, all outstanding claims of Company shall become due and payable by Customer immediately with respect to the Goods delivered to Customer and not repossessed by Company.
9. Intellectual property – The name(s), trademark(s), and trade name(s) utilised by Company in the conduct of its business and all intellectual property rights and/or other right, title and interest therein, are the sole property of and vest in Company and/or its licensors. Unless otherwise agreed, Customer shall not use the name(s), trademark(s), or trade name(s) utilised by Company in the conduct of its business without prior written acceptance by Company.
10. Force Majeure - Company shall not be liable for any damage, loss, claim, demand, cost, tax or expense of whatever nature suffered or incurred by Customer arising out of or in connection with the non-compliance or delay in compliance of obligations resulting from an act or event beyond the reasonable control of Company, its agents or contractors or their sub-agents and sub-contractors, affecting the performance by Company of its obligations hereunder, including without limitation disaster, fire, flood, earthquake, elements of nature, acts of God, actual or threatened terrorist attacks, acts of war, sabotage, explosion, riots, civil disorders, rebellions, revolutions and strikes, lockouts or labour disputes, government acts, accident or breakdown of plant or machinery, shortage of materials, failure by a utility provider (including electricity, gas, network or telecom provider) to provide services and any actions or omissions of third parties beyond its reasonable control. The fact the Euro has ceased to be a lawful currency does not constitute an act of force majeure and all debts of Customer will automatically become due the day after the Euro ceased to be a lawful currency.
11. Governing Law and Jurisdiction - The Conditions, for all purposes, are governed and construed in accordance with the laws of Northern Ireland.