Terms & Conditions
1. DEFINITIONS
"Vendor" means MANTINGA UK LTD (registered in
"Goods" means any goods or products sold or supplied pursuant to these Terms and Conditions.
"Purchaser" means any person firm or company to whom Goods are sold or supplied by the Vendor.
"Contract" means any contract between the Vendor and the Purchaser for the sale and purchase of the Goods, incorporating these Terms and Conditions.
2. APPLICATION OF TERMS
(a) Unless the Vendor expressly accepts other terms and conditions by means of written amendments of these Terms and Conditions signed by an authorised signatory of the Vendor, the Vendor shall supply Goods solely on these Terms and Conditions to the exclusion of any other terms and conditions.
(b) Any purported variation of the Terms and Conditions whether by endorsement or reference to any purchase order or other document shall have no effect.
(c) Each telesales order for Goods by the Purchaser from the Vendor shall be deemed to be an offer by the Purchaser to purchase Goods and shall be subject to these Terms and Conditions.
(d) No such order placed by the Purchaser shall be deemed to be accepted by the Vendor until the Vendor’s telesales agent acknowledges the order or (if earlier) the Vendor delivers the Goods to the Purchaser.
(e) These Terms and Conditions shall apply to all the Vendor's sales of the Goods and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Vendor.
3. DESCRIPTION
(a) The quantity and description of the Goods shall be confirmed to the Purchaser by the Vendor’s telesales agent.
(b) All samples, drawings, descriptive matter, specifications and advertising issued by the Vendor and any descriptions or illustrations contained in the Vendor's brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
4. PRICES
(a) Unless otherwise agreed by the Vendor in writing, the price for the Goods shall be at prices ruling on the date of despatch which may be varied from time to time without notice at the Vendor’s sole and absolute discretion for any of the Goods
(b) All prices are subject to alteration without notice where the Vendor is obliged to increase prices through no fault of its own, including but not limited to, as a result of an Excise or other duty or tax or impost levied on relevant Goods; or an increase in the costs of complying with any relevant legislation or standards; or an increase in transportation or raw material costs.
(c) The prices of Goods shown in any price list are quoted exclusive of Value Added Tax
5. ORDERS
(a) The Vendor does not operate a
(b) All Goods are sold subject to availability.
(c) The Purchaser shall not, after
6. DELIVERY
(a) Delivery of Goods at the premises of the Purchaser, such other premises notified to the Vendor by the Purchaser or the Purchaser’s specified agent shall for the purpose of these Terms & Conditions, constitute delivery to the Purchaser.
(b) Any dates specified by the Vendor for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. However, the Vendor will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges, or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Vendor’s negligence), nor will any delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds 180 days.
(c) The Vendor shall be entitled where appropriate to deliver any order by one or more consignments and each consignment shall be treated as a separate contract
(d) If the Purchaser fails to accept delivery of the Goods or the Vendor is unable to deliver the Goods on time because the Purchaser has not provided appropriate instructions, documents, licences or authorisations:
(i) risk in the Goods shall pass to the Purchaser;
(ii) the Goods shall be deemed to have been delivered; and
(iii) the Vendor shall at the Vendor's option be entitled to store the Goods at the expense and risk of the Purchaser.
(e) The Purchaser must provide a signed acceptance for all deliveries from the Vendor. If the Purchaser fails to do so, the Purchaser shall not make any claim in relation to quantity or the identity of the Goods.
(f) The Purchaser shall have the right to inspect the Goods on delivery and shall inform the Vendor immediately of any complaints in relation to the quantity or identity of the Goods. Claims relating to quantity or identity of the Goods must be reported to the Vendor’s driver on delivery and any claims for shortages will not be entertained once the Goods have been signed for by the Purchaser
7. COMPLAINTS/DAMAGES
(a) No claim for damages or quality issues will be considered by the Vendor unless the Purchaser notifies the Vendor’s Customer Services Department within 24 hours of delivery quoting a valid order or invoice number. Where the Purchaser indicates on the delivery note that the Goods have been checked no claims for damages or quality will be accepted.
(b) Alleged damaged Goods shall be held by the Purchaser without cost to the Vendor. The Purchaser shall await the Vendor's instructions and shall allow the Vendor's representative to examine the Goods in question and to take away samples for examination.
(c) Where any valid claim is based on the quality or condition of the Goods and notified to the Vendor in accordance with clause 7(a) and accepted by the Vendor, the Vendor shall replace the Goods (or part in question) free of charge but the Vendor shall have no further liability to the Purchaser.
(d) In case of alleged damage or quality issues, no deduction may be made by the Purchaser against invoice except on specific written authority from the Vendor.
8. RISK
Where delivery is effected by means of vehicles owned or hired by the Vendor, delivery shall be complete and risk in the Goods shall pass to the Purchaser on completion of delivery at the Purchaser's specified address. Where delivery is effected by other means, risk shall pass when Goods are handed over to the relevant carrier. The Goods shall be at the Purchaser's risk from the time of delivery notwithstanding that the property in the Goods remains with the Vendor as provided in Condition 10 below.
9. PAYMENT
(a) Payment for Goods supplied shall be received by the Vendor in full on delivery. The Vendor may, at its sole discretion and after carrying out all appropriate credit checks in respect of the Purchaser afford credit terms to the Purchaser. In these instances payment must be made on or before the date as shall be specified on the Vendor’s invoice. Cash on delivery to any representative of the Vendor can only be proven and accepted on production of a receipted invoice being furnished by the Purchaser, no claim of cash payment can be entertained subsequently.
(b) If the Purchaser fails to make payment in accordance with clause 9 (a) The Vendor reserves the right to charge interest at the annual rate of 4% above National Westminster Bank base rate from the due date specified on the Vendors invoice to the date of payment. The claimant claims daily interest under the Late Payment of Commercial Debt (Interest) Act 1998 and compensation arising from late payment under section 5A.. The Vendor reserves the right to charge the Purchaser for all third party costs, including collection commission levied at the rate of 10% of the total debt balance.
(c) The Vendor reserves the right at its absolute discretion to refuse any proof of delivery request older than 3 months. Any request from the Purchaser to the Vendor requesting a copy proof of delivery or invoice will be chargeable at a rate of £2 per copy.
(d) Payment by due date is a condition precedent to future deliveries under any contract between the Vendor and the Purchaser.
(e) All payments to be made hereunder shall be made without any deduction set off or counterclaim whatsoever or howsoever arising. Purchasers who have established credit accounts should send payments made payable to Mantinga UK Ltd, Churcham Business Park, Churcham, Gloucester GL2 8AX. All payments must be clearly marked with the Purchasers account number and be delivered before the due date.
(f) No payment shall be deemed to have been received until the Vendor has received clear funds.
(g) All payments payable to the Vendor under the Contract shall become due immediately upon termination of the Contract despite any other provision.
(h) If any sums contained in the account are disputed, the Purchaser shall not withhold payment of the remainder of the account and if it shall be subsequently agreed or determined that any disputed sums are properly payable, then interest shall be payable in accordance with 9 (b) above.
10. PASSING OF PROPERTY
(a) Notwithstanding the passing of risk in the Goods in accordance with Condition 8, ownership of the Goods shall remain with the Vendor until such time as the Vendor has received payment of the purchase price of the Goods together with payment of all other sums due which are or which become due from the Purchaser under this or any other contract between the parties.
(b) Insofar as the Goods may be delivered to the Purchaser prior to the time when ownership of them passes to the Purchaser the Purchaser shall until such time hold the Goods as the fiduciary agent of the Vendor and shall accordingly remain liable to account to the Vendor for the Goods or, if they are sold by the Purchaser, for all the proceeds tangible and intangible (and including without limitation insurance proceeds) of such sale.
(c) The Purchaser shall store the Goods separate from any other Goods of the Purchaser and of third parties and shall identify the Goods as the property of the Vendor. The Purchaser shall not remove any identifying marks placed on the Goods by the Vendor.
(d) The Purchaser may exercise its right to sell the Goods as the fiduciary agent of the Vendor in the usual course of the Purchaser's business but such right:
(i) may be revoked at any time by the Vendor giving notice to that effect if the Purchaser is in default for longer than seven days in the payment of any sum whatsoever due to the Vendor (whether in respect of the Goods or of any other Goods or services supplied at any time by the Vendor to the Purchaser or for any reason whatsoever) or if the Vendor has bona fide doubts as to the solvency of the Purchaser;
(ii) shall automatically cease if a Receiver, Manager or Administrator is appointed over the assets undertaking or property of the Purchaser, or a winding up or administration order against the Purchaser is made or petitioned or any petition or order in bankruptcy against the Purchaser is presented or made, or the Purchaser goes into voluntary liquidation (otherwise than for the purposes or reconstruction of amalgamation while solvent), or calls a meeting of or makes arrangements or compositions with creditors; and
(iii) shall not create any relationship between the Vendor and the Purchaser's customer.
Upon determination of the Purchasers' rights of sale under paragraph (i) or (ii) above the Purchaser shall place the Goods at the disposal of the Vendor (who shall be entitled to enter any premises of the Purchaser for the purpose of removing the Goods and to remove the Goods from the said premises), and/or as the case may be, pay to the Vendor the proceeds then held by the Purchaser as trustee for the Vendor in accordance with this Condition.
11. RESALE OF GOODS
(a) The Purchaser undertakes to acquaint himself with requirements of all Governmental and other competent bodies relating to sale and storage of the Goods. In particular the Purchaser shall offer Goods for sale strictly in accordance with any instructions of the Vendor (whether so marked on the Goods or not) regarding latest date for sale and in accordance with any regulations of competent bodies. No credit shall be given by the Vendor for Goods returned by the Purchaser after the latest date for sale.
(b) The Purchaser shall indemnify the Vendor in respect of any breach of the terms of this Condition and the Vendor shall have no responsibility for any losses or damage (whether direct, indirect or consequential) caused thereby.
12. LIABILITY
(a) The Vendor's liability hereunder shall be limited to replacing defective, damaged or non delivered Goods. The Vendor shall have no liability for any loss or damage (direct, indirect or consequential) caused thereby. Save as aforesaid all warranties and conditions express or implied, statutory or otherwise, except the implied conditions as to title in Sale of Goods Act 1979 are hereby expressly excluded.
(b) Subject to Condition 12 (a), the Vendor’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 in aggregate to all sums paid by the Purchaser to the Vendor under the relevant Contract; and the Vendor shall not be liable to the Purchaser for any indirect or consequential loss or damage or loss of profit, loss of business, depletion of goodwill, or otherwise or costs or expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
(c) Nothing in these Terms and Conditions excludes or limits the liability of the Vendor for death or personal injury caused by the Vendor’s negligence or fraudulent misrepresentation or any other liability to the extent such liability may not be excluded or limited as a matter of law.
13. CONSUMER PROTECTION ACT 1987
If the Vendor incurs any liability under the Consumer Protection Act 1987 (or any statutory modification or re-enactment thereof) to any person by virtue of a defect or defects in Goods the Purchaser shall indemnify and keep indemnified the Vendor in respect of such liability to the extent that the said liability shall have arisen due to any act, omission or default on the part of the Purchaser.
14 FORCE MAJEURE
(a) The Vendor shall not be liable for the consequences of any failure to fulfil any terms of any transaction if fulfilment has been delayed, hindered or prevented by fire, accident, strike, lockout or any circumstance which is not directly within its control, nor shall any such failure entitle the Purchaser to avoid the transaction. If by reason of any such circumstances the Vendor is able to fulfil only part of its total commitments, the Vendor shall be entitled to allocate available supplies at it sole discretion amongst its customers
(b) If by reason of any one or more of the circumstances set out in Condition 14 (a) the Vendor is of the opinion that supply and delivery of Goods is rendered impracticable the Vendor shall be at liberty to terminate the Contract by written notice to the Purchaser, whereupon the Purchaser shall pay any sums due to the Vendor for Goods already delivered.
15. TERMINATION
Either party shall be entitled to terminate any Contract made hereunder if the other commits a material breach and fails to remedy the same after written notice of 21 days or if the other enters into liquidation or receivership.
16. GOVERNING LAW/ARBITRATION
These Terms and Conditions shall be governed by and construed in accordance with English law and any disputes shall be subject to the exclusive jurisdiction of the English Courts.
17. RIGHTS
Each right or remedy of the Vendor under these Terms and Conditions is without prejudice to any other right or remedy of the Vendor whether under the Contract or not.
18. SEVERENCE
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19. WAIVER
Failure or delay by the Vendor in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
Any waiver by the Vendor of any breach of, or any default under, any provision of the Contract by the Purchaser will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
20. RIGHTS OF THIRD PARTIES
The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
21. COMMUNICATIONS
(a) All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
(i) (in case of communications to the Vendor) to its registered office or such changed address as shall be notified to the Purchaser by the Vendor; or
(ii) (in the case of the communications to the Purchaser) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Purchaser set out in any document which forms part of the Contract.
(b) Communications shall be deemed to have been received:
(i) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(ii) if delivered by hand, on the day of delivery;
(iii) if sent by fax on a working day prior to 4.00pm, at the time of transmission and otherwise on the next working day.
