MARTEK TERMS & CONDITIONS OF SALE
1. DEFINITIONS
a) In these Conditions the following expressions shall have the following meanings:
b) “the Company” – MARTEK CONTRACTS LIMITED.
c) “the Buyer” – any person whom the Company contracts with or makes an Offer to contract with to supply goods, work or work and materials or services for a consideration.
d) “Offer” or “Offers” – any estimate, quotation tender or offer or proposal given, submitted or made by the Company
2. GENERAL
a) Except where the Company agrees in writing to be bound by some other contractual document and such other document is duly executed by the Company, all Offers are subject to these Terms and Conditions of Sale.
b) These Terms and Conditions of Sale shall apply to all contracts for goods supplied, work done or work and materials or services done or supplied by the Company and its suppliers or sub-contractors to the exclusion of all other terms and conditions express or implied except those contained elsewhere in the Offer or implied by law,
c) These Terms and Conditions of Sale shall override any terms or conditions stipulated or referred to by the Buyer whether in an order, letter, tender or other document, or in negotiations or otherwise.
d) Unless stated otherwise in an Offer an Offer is available for acceptance within 30 days from the date of the Offer and if not accepted within that period, shall lapse.
e) The Company reserves the right to require a written order issued by a duly authorised officer employee or representative of the Buyer before proceeding with an order.
f) All Offers are subject to the obtaining by the Company of satisfactory trade references, credit ratings and guarantees in relation to the Buyer and any Offer shall remain subject as aforesaid notwithstanding the receipt by the Company of an acceptance of that Offer before this condition has been satisfied.
3. BASIS OF OFFER
a) All Offers are based upon the quantities, specification and/or design as stated or referred to therein and the Company reserves the right to revise prices in the event of quantities, specification and/or design being altered at the request of the Buyer or otherwise due to a change in the Buyer’s requirements. Such revisions will not necessarily be at pro rata rates.
b) Unless specified by the Company to the contrary, no provision is made in any Offer for the value added tax, import duties, fees incurred in respect of district surveyors or local authorities or for any other charges levied by or under the authority of H.M. Government and the Offer is made on the basis of the Buyer paying or indemnifying the Company against any such tax, duties, fees and charges. Further, unless specifically stated in the Offer the Company makes no provision for any expenditure in connection with obtaining licenses for the use of power, gas, water or other such services on the site and any such expenditure will be charged as an extra to the contract.
c) Unless specifically stated otherwise, Offers are prepared utilising the rates of pay, conditions, etc. in accordance with the working rule agreement in force at the date this Offer is prepared plus such other payments generally applicable within the Company’s work force. No allowance is made for conforming to any special rates of pay etc. which apply or might apply where or when the work is to be carried out and these will, if applicable, be charged as an extra.
Martek
d) All the product descriptions used by the Company, particularly the measurements, are accepted terms used in the trade. All dimensions quoted are approximate. All goods will be within reasonable commercial standards of manufacturing tolerances.
e) The Company carries out a continuous programme of research and development and therefore reserves the right to improve or alter any design or specification at any time without prior notification.
f) It is a condition of all Offers that buildings to receive an installation must simulate as near possible the conditions which will prevail after occupation. Unless otherwise mentioned specifically in the Offer, the cost of achieving and/or maintaining the conditions required shall be the responsibility of the Buyer and if the Company is required to provide any services to this end such services shall be charged as an extra to the contract.
4. PAYMENT
a) In the event of non-payment of any account or interim application after the due date, the Company reserves the right without further notice summarily to determine its employment under the contract without prejudice to any other claims and remedies under the contract and without incurring any liability for the consequences of any delay to the Buyer howsoever caused by this determination.
b) If payment is not made on the due date any previously agreed discounts or special terms may be withdrawn by the Company and it is further entitled without giving notice to charge the Buyer compound interest on any amount outstanding at the rate of 5% per annum over the base lending rate of the National Westminster Bank PLC for the time being in force as well after any judgment as before.
c) In the event of the termination of a contract or employment under a contract by reason of any act or default on the part of the Buyer in total or in part of goods or work to be done, the Buyer shall be responsible for all costs directly or indirectly incurred regarding the contract prior to and after determination of the contract or the part thereof such costs to be recoverable from the Buyer on demand and as a debt.
d) (i) If payment of the full amount due under the contract (the “contract price”) has not been made by the date 14 days after the due date for such payment then the Buyer will pay to the Company a fee (the “non-payment fee”) for the use and benefit of the goods supplied under the contract until the contract price is paid in full.
(ii) Subject to paragraph (iii) below the non-payment fee shall be an amount assessed and notified by the Company to the Buyer as being the weekly profit that the Buyer might reasonably be expected to earn from putting to use in its business the goods supplied by the Company under the contract on the assumption that the business of the Buyer is capable of being run as a going concern from the premises to which the goods have been supplied as from the date on which the Buyer defaults on payment of the contract price.
(iii) If the Buyer has paid part of the contract price then the non-payment fee shall be reduced by an amount which bears the same proportion to the whole non-payment fee as the amount paid bears to the full contract price.
(iv) For the purpose of making the assessment under paragraph (ii) weekly profit shall mean weekly gross sales less costs of weekly purchases (but no other overheads) in each case conclusively assessed by the Company as the amounts that might reasonably be expected to apply.
(v) The non-payment fee shall be payable weekly in advance, the first date of payment being the date 14 days after the due date for payment of the contract price, and the first payment to be for the period commencing on the
due date for payment of the contract price and ending on the last day of the week commencing on the first date of payment.
(vi) The rights of the Company under this clause are exercisable in addition and without prejudice to the Company’s other rights and remedies and in particular its rights to claim payment of the contract price and interest under clause 4 b).
5. DESIGN WORK
a) The Company may undertake to carry out preliminary design work on behalf of the Buyer as part of the Offer. Unless otherwise agreed in writing by the Company, or stated to the contrary in the Offer, all further design work or changes to the design, whether instructed by the Buyer or required as a matter of course to complete the product or project, shall be at extra cost to the contract whether or not the said product or project is ultimately ordered by or required by the Buyer.
b) The Buyer may request that the Company provides the Buyer with a quotation or estimate for carrying out further design work at any time prior to commencement of further design work and the Company will supply such quotation or estimate free of charge.
c) The Buyer shall be responsible to the Company for all reasonable costs and expenses incurred for any abortive design work carried out by the Company on the Buyer’s behalf.
6. COMPLIANCE WITH REGULATIONS ETC.
a) Unless otherwise agreed in writing by the Company, it is the Buyer’s responsibility to obtain at his own expense and prior to the Company’s commencement on site any necessary local, planning, fire, or other consents or permissions and to ensure that the works comply with building and other statutory regulations, the general law, and any conditions attaching to any such consents and permissions.
b) Notwithstanding the foregoing, if the Buyer should require work or production of goods to commence prior to receipt of the aforementioned consents or permissions, the Buyer undertakes to pay to the Company all reasonable costs incurred by the Company arising from the requirements of such consents or permissions or for any abortive work or materials or goods whether or not the aforementioned requirements could be construed as being reasonably foreseeable.
7. RETENTION OF TITLE
a) The Buyer acknowledges that before entering into an agreement for the purchase of any goods from the Company, he has represented and warranted that he is not insolvent and has not committed any act of bankruptcy, or, being a company with limited or unlimited liability, knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver, to petition for winding up of the Buyer or exercise any other rights over or against the Buyer’s assets.
b) Goods supplied by the Company shall be at the sole risk of the Buyer as soon as they are delivered by the Company to the Buyer’s vehicles or his premises or otherwise to his order and it shall be the responsibility of the Buyer to insure the goods against loss or damage and to keep them so insured.
c) Such goods shall remain the sole and absolute property of the Company as legal and equitable owner until such as time as the Buyer shall have paid to the Company the agreed price in full together with any interest that has accrued on the unpaid price.
d) The Buyer acknowledges that he is in possession of goods solely as bailee for the Company until such time as the full price thereof is paid to the Company.
e) The Buyer’s right to possession of the goods shall cease if he, not being a company, commits an act of bankruptcy or if he, being a company, does anything or fails to do
anything which would entitle a receiver to take possession of any assets or which would entitle any person to present a petition for winding up.
f) Before title to goods has passed to the Buyer, and without prejudice to its other rights and remedies, the Company shall have the right to recover and resell the goods or any of them and for that purpose may enter upon any premises where they are stored or fixed or where they are reasonably thought to be stored or fixed and if the proceeds of resale exceed the costs of recovery and resale such excess shall be allowed against the Company’s claim for the unpaid price.
g) The Buyer of goods supplied but not fully paid for is permitted by the Company to incorporate them in or with any other product or products subject to the condition that the new product or products or any other chattel whatsoever containing any part of the said goods shall be separately stored and marked so as to be identifiable as being made from or with the goods the property of the Company.
h) If goods the property of the Company are admixed with goods the property of the Buyer or incorporated within the same, the product thereof shall become and/or shall be deemed to be the sole and absolute property of the Company. If goods the property of the Company are admixed with goods the property of any person other than the Buyer, or are processed with or incorporated within the same, the product thereof shall become or shall be deemed to be owned in common with that other person.
i) The Buyer shall be at liberty to agree to sell on the Company’s goods on the conditions that such an agreement to sell shall take place as agent and bailee for the Company, whether the Buyer sells on his own account or not, and that the entire proceeds thereof are held in trust for the Company and are not mingled with any other monies and shall at all times be identifiable as the Company’s monies.
j) If the Buyer has not received the proceeds of any such sale he will, if called upon so to do by the Company within 7 days thereof, forthwith assign to the Company all rights against the person or persons to whom he has supplied any product or chattel made from or with the Company’s goods.
8. COPYRIGHT AND PATENTS
a) All drawings prepared by the Company for design and/or layout remain the property of and are copyright to the Company. Unless otherwise expressly authorised in writing by the Company no use copy of or disclosure thereof shall be made by the Buyer.
b) The Buyer shall indemnify and hold harmless the Company against all costs, claims, damage and expenses arising out of any infringement of any copyright patent or registered design involved in work specified by the Buyer and carried out accordingly.
9. DELIVERY DATES AND INSTALLATION PROGRAMMES
a) All delivery dates and installation programmes are quoted in good faith. The Company shall not be liable for any loss or damage whatsoever arising from late delivery of goods or materials or delays in the completion of the installation.
b) If, through circumstances beyond the control of the Company, delivery of materials cannot be accepted at the contracted time, storage costs will be charged if the materials have to be brought back to the Company’s works and handling and transport costs will be charged as an extra.
c) Offers are based upon continuity of work in a logical sequence on a clear and level site and to an agreed programme during the hours the Company requires to work.
d) If completion of the work is delayed by circumstances which are beyond its control the Company reserves the right to invoice all work already executed at the contract rate and to charge for all other materials, labour and costs howsoever incurred, whether such work has been delivered to site or held in the Company’s works.
e) Unless quoted for specifically in writing by the Company, the Buyer shall be responsible for ensuring that the structure of the building walls, ceilings, etc. will be suitable to receive the installation proposed.
10. VARIATIONS
a) Variations shall not vitiate the contract. Oral instructions involving a variation and confirmed in writing by the Company shall be deemed to be the Buyer’s written instructions if not dissented from in writing within seven days.
b) The carrying out of daywork and/or overtime by the Company and the charging of time lost in waiting for any reason beyond its control will be on the understanding that the Company is a specialist contractor or sub-contractor and that payment will be made in accordance with the Company’s specialist rates.
11. CLAIMS FOR DAMAGE, SHORTAGE, LOSS OR OTHER CHARGES
a) The Company does not accept responsibility for any damage, shortage or loss in transit unless (a) damage or shortage is notified in writing both to the Company and to the carrier within three days of receipt of goods and the goods have been signed for as ‘damaged’ or ‘not examined’ and have been handled by the Buyer in accordance with the carrier’s conditions, or (b) non-delivery (in case of total loss) is notified to the Company and to the carrier within 10 days of the due date of despatch.
b) Materials supplied and delivered for installation by anyone other than the Company shall within 48 hours of delivery be checked by the Buyer against the Company’s specification before installation and any items found to be incorrect or defective shall be notified to the Company for replacement before installation, as the Company will treat any cost incurred in removing incorrect or defective items and installing replacement items as an extra.
c) Whilst care will be taken to avoid damage to flooring and floor coverings including carpets where applicable, fixtures, fittings, walls and/or ceilings the Company cannot accept any responsibility for damage or markings which may be caused by the Company, its employees or agents during the execution of the work unless the Buyer has previously provided adequate protection against such damage.
d) The signing of the daywork sheets by the Company’s site representative shall be for record purposes only and does not necessarily admit its liability or that the work will be paid for in this manner.
12. DEFECTS
a) The Company will at its own cost repair or replace (as the Company sees fit) defective goods providing such defect is caused solely by virtue of the Company’s design, materials or workmanship and providing the defect is notified in writing to the Company within six months of despatch or fixing of the defective goods in question,
b) The Company does not accept responsibility for labour or other costs in removing or reinstalling any goods save as provided in ‘a)’ above.
d) The Company shall not be responsible for any defects or damage to the materials or work caused by abnormal conditions such as dampness, excessive temperature or humidity levels, movement in buildings, chemical action or by any causes over which it has no control.
e) Notwithstanding any other provision of these Terms and Conditions the liability of the Company under the contract for loss liability damage cost and expense suffered or incurred by the Buyer arising due to the default of the Company or its employees shall not exceed the contract price provided that this limitation of liability shall not affect the liability of the Company for death or personal injury caused by its negligence.
f) No claim for free replacement or otherwise will be accepted in respect of any item found to be defective through faults in design or construction where the item is specified or supplied by the Buyer.
13. COMPANY’S EMPLOYEES AND ITS SUB-CONTRACT LABOUR
a) The Buyer shall at his own expense ensure that the Company’s employees and/or sub-contract labour engaged on the work shall enjoy the facilities provided for by the Building (Safety Health and Welfare) Regulations 1948, the Factories Act 1961, the Health and Safety at Work Act 1974 or any statutory modifications or re-enactments thereof
b) Should asbestos or asbestos-based materials be discovered in the areas or in the vicinities of the areas where the Company’s personnel are working and the work requires the removal, drilling, cutting or otherwise disturbing of the asbestos or asbestos-based materials or of where asbestos or asbestos based materials are being worked or disturbed by others, the Company reserves the right to immediately withdraw its’ personnel from site until adequate instructions for the removal or the carrying out of work to the asbestos or asbestos-based materials have been given to the Company (e.g., instructions to employ a specialist firm to carry out the asbestos related work) or until others have completed their asbestos related work and all air-based asbestos fibres have been removed. Any cost incurred by the Company in compliance with this condition shall be an extra to the contract.
14. SEVERANCE
If any provisions of these Terms and Conditions shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that provision or relevant part thereof shall to that extent be deemed not to form part of these Terms and Conditions and the enforceability of the remainder of these Terms and Conditions shall not be affected.
15. GOVERNING LAW
All disputes arising out of any Offer, or in relation to these Terms and Conditions of Sale, shall be governed by English Law.
16. THIRD PARTIES
Notwithstanding any other provision of these Terms and Conditions of Sale or the Offer for the purposes of the Contracts (Rights of Third Parties) Act 1999 nothing in these Terms and Conditions of Sale or the Offer confers or purports to confer on any person who is not a party to it any right to enforce any of the terms of the contract which arises from the Offer.