Terms and Conditions

1 DEFINITIONS

In these terms and conditions:

Acceptance: means any acceptance of any Order whether by email, post, telephone, or otherwise.
Contract: means the Customer's Order and the Supplier's Acceptance of the Order.
Customer: means the person or company who purchases Goods and/or Services from the Supplier.
Goods: the goods agreed in the Contract to be purchased by the Customer from the Supplier.
Services: means the Service supplied or to be supplied by the Supplier to the Customer.
Maintenance: means the act of maintaining existing hardware, software and systems.
Supplier: Marke Solutions of 6 Captains Hill Alcester Warwickshire B49 6QW

2 EFFECT OF THE ORDER

Any Order from the Customer constitutes an offer by the Customer to purchase the Goods and/or Services specified in it, subject to these conditions. Accordingly, the execution and return of all acknowledgement(s) of any Acceptance by the Supplier, or the Supplier's commencement or execution of work pursuant to the Order, shall establish a contract for the supply and purchase of those Goods and/or Services, subject to these conditions. The Supplier will have no obligation to confirm the validity of any order placed or the authority of the person placing an order.

3 BASIS OF SALE

3.1 Any quotation is valid for a period of 14 days only, and the Supplier may withdraw it at any time by notice to the Customer.

3.2 Each Order or Acceptance of a quotation for Goods and/or Services shall be deemed to be an offer by the Customer subject to these conditions.

3.3 No Order which has been acknowledged by the Supplier may be cancelled by the Customer, except with the agreement in writing of the Supplier and provided the Customer indemnifies and keeps indemnified the Supplier in full against all loss (including loss of profit), costs (including costs of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.

3.4 The Supplier shall have no liability for destruction or damage to the Customer’s data. The Customer agrees to keep a copy of all data access to which shall be denied to the Company its employees or servants.

4 PRICE

4.1 The price of the Goods shall be the Supplier’s quoted price, or if no price has been quoted the price at the date of delivery of the Goods. All prices quoted are in accordance with condition 3.1 or until earlier Acceptance by the Customer, after which time they may be altered by the Supplier without giving notice to the Customer.

4.2 Except as otherwise stated in the Supplier’s written quotation or in any price list of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are given for Goods by the Supplier are on an ex works basis, and where the Supplier agrees to deliver the Goods otherwise than at the Supplier’s premises, the Customer shall be liable to pay the Supplier’s charges for transport, packaging and insurance.

4.3 All prices are exclusive of VAT, which shall be payable in addition at the applicable rate.

4.4 In respect of the supply of Goods, the Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of its Goods as has not been delivered to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including but not limited to any alteration to duties, foreign exchange movements, change in legislation, materials or other manufacture based costs), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the supplier adequate information or instructions.

5 TERMS OF PAYMENT

5.1 Subject to any special terms otherwise agreed in writing between the Customer and the Supplier, the Supplier may invoice the Customer for the price of the Goods and/or Services on or at any time after the delivery of the Goods and/or commencement of the Services and the Customer shall pay the price for the Goods and/or Services within 30 days of the date of the Suppliers invoice therefore.

5.2 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Goods and/or Services outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Supplier, the Supplier may:

(a) terminate the contract or suspend any further delivery and or supply of Goods and/or performance of the Services (whether ordered under the same contract or not) to the Customer; and/or
(b) appropriate any payment made by the Customer to such of the Goods (or the Goods supplied under any other contract between the Customer and the Supplier) as it thinks fit; and/or
(c) charge interest on the amount outstanding from the due date of receipt by the Supplier, at an annual rate of 8% above the Bank of England base lending rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement. Additional fees may also be claimed as specified in the The Late Payment of Commercial Debts Regulations 2013; and/or
(d) suspend all further supply, delivery, installation or other services until payment has been made in full.

5.3 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

6 DELIVERY

6.1 Subject to the other provisions of these Conditions the Supplier 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 the delivery of the Goods or performance of the Services (even if caused by the Supplier’s negligence) nor shall it entitle the Customer to terminate or rescind the Contract.

6.2 If the Customer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Supplier’s fault) then, without limiting any other right or remedy available to the Supplier; the Supplier may:

(a) store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; and/or;
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.

Where the Contract includes the provision of Services:

(c) performance of the Services shall commence on the date specified in the Order agreed between the parties. Time for commencement of performance of the Services shall not be of the essence;

7 NON-DELIVERY OF THE GOODS

7.1 The Supplier shall not be liable for any non-delivery of Goods (even if caused by the Supplier’s negligence) unless the Customer gives written notice to the Supplier of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.

8 CUSTOMER’S OBLIGATIONS

8.1 The Customer shall:

(a) provide in a timely manner such access to the Customer's premises and data, and such office accommodation and other facilities, as is requested by the Supplier to enable performance of the Services;
(b) provide in a timely manner such information as the Supplier may request in connection with the provision of the Services, and ensure that such information is accurate in all material respects; and
(c) be responsible for preparing the relevant premises (at its own cost) for the supply of the Services.

8.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer's agents, sub-contractors or employees, the Customer shall be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.

9 RISK AND PROPERTY

9.1 The Goods are at the risk of the Customer from the time of delivery. Ownership of the Goods shall not pass to the Customer until the Supplier has received in full (in cash or cleared funds) all sums due to it.

9.2 Until ownership of the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as the Supplier’s Bailee;
(b) store the Goods (at no cost to the Supplier) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Supplier’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks to the reasonable satisfaction of the Supplier. On request the Customer shall produce the policy of insurance to the Supplier.

9.3 The Customer’s right to possession of the Goods shall terminate immediately if:

(a) The Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamations, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to the court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
(b) the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Supplier and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
(c) the Customer encumbers or in any way charges any of the Goods.

9.4 The Supplier shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Supplier.

9.5 The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter the premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.

9.6 Where the Supplier is unable to determine whether any Goods are the goods in respect of which the Supplier’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Supplier to the Customer in the order in which they were invoiced to the Customer.

9.7 On termination of the Contract, howsoever caused, the Supplier’s (but not the Customer’s) rights contained in this condition 9 shall remain in effect.

10 WARRANTY

10.1 As expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

10.2 The Supplier warrants to the Customer to perform the Services with reasonable care and skill for 30 days from when each Service was performed.

10.3 The Supplier shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Supplier.

10.4 The Supplier warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 90 days from the date of delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

10.5 The Supplier shall not be liable for a breach of the warranty in condition 10.4 unless/if the Customer gives written notice of the defect to the Supplier, and, if the defect is as a result of damage in transit to the carrier, within [14] days of the time when the Customer discovers or ought to have discovered the defect; and the Supplier is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost for examination to take place there; and

10.6 The Supplier shall not be liable for a breach of the warranty contained in condition 10.2 unless:

(a) the Customer gives written notice of the defect to the Supplier within 14 days of the time when the Customer discovers or ought to have discovered the defect and
(b) after receiving notice, the Supplier is given a reasonable opportunity of examining such Goods.

10.7 The Supplier shall not be liable for a breach of the warranty in condition 10.4 if:

(a) the Customer makes any use of Goods in respect of which it has given written notice under condition 10.5; or
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the installation; commissioning; use or maintenance of the Goods; or
(c) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(d) the Customer alters or repairs such Goods without the written consent of the Supplier.

11 LIMITATION OF LIABILITY

11.1 Subject to Conditions 6, 7 and 10 the following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of the Contract;
(b) any use made by the Customer of the Services, or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

11.3 Nothing in these conditions excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.

11.4 Subject to condition 16.2 and condition 16.3 :

(a) the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier'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 price paid for the Goods and/or Services.

12 TERMINATION

12.1 The Customer may terminate this agreement upon giving not less than 30 days’ notice to the Supplier.

12.2 If any provision of this agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the agreement and the remainder of the provisions in question shall not be affected

12.3 The Supplier may terminate this agreement forthwith if the Customer fails to pay any sums due to it within 15 days of the due date therefore.

13 FORCE MAJEURE

The Company reserves the right to cancel, vary or suspend the operation of contract of sale if events occur which are in the nature of force majeure including (without prejudice to the generality of the foregoing), fire, floods, storm, plant breakdown, strikes, lockouts, riot, hostilities, non-availability of materials or supplies or any other event outside the control of the Company, and the Company shall not be held liable for any breach of contract resulting from such an event.

14 WAIVER

14.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

15 STATUS OF PRE-CONTRACTUAL STATEMENTS

Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract.

16 THIRD PARTY RIGHTS

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

17 GOVERNING LAW AND JURISDICTION

This agreement shall be governed by and construed in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English Courts.

18 VARIATIONS

The Contract and/or these terms and conditions, as published on the website www.marke.co.uk at the time of sale, may be varied by the Supplier from time to time at the sole discretion of Supplier.