Terms & Conditions
Terms
and Conditions of Sale: Montara Ltd T/A Total Import Solutions
1.
Definitions
1.1.
"The Company" means Montara
Ltd t/a Total Import Solutions.
1.2.
"The Customer" means the
person to whom the Company may agree to sell goods in accordance with the
Company's terms and conditions of sale.
1.3.
“The goods" means the articles or
things or any of them or any part of them to be provided by the Company in
accordance with the Company's terms and conditions of sale.
2.
General
2.1.
Any order placed with the Company by
the Customer will constitute an offer to the Company to contract upon the
following express terms and conditions (the Company’s terms and conditions of
sale). The conditions of sale constitute the entire understanding between the
parties and, save to the extent that the exclusion or restriction of liability
may be prohibited by statute, all other inconsistent conditions, warranties and
representations applied by law, trade, custom, practice, course of dealing or
otherwise, except as to title, are hereby excluded.
2.2. All orders are accepted and goods supplied
subject to these express terms and conditions and no variation or addition
thereto, whether contained in the Customer’s order, in any prior promise,
representation, undertaking or understanding of any kind or otherwise shall
apply unless expressly agreed in writing by the Company’s authorised
representative.
2.3. The Company may from time to time pass on
enquiries or invitations to quote, received from end users, to our Re-seller
partners. This is a referral of information received only and is passed on in
good faith. The Company does not take responsibility for the accuracy of
information, financial status or ability to pay of any enquirer. It is the sole
responsibility of the Re-seller to satisfy themselves as to the nature and
legitimacy of the enquiry and adequately assess any potential risk as they
would with any other customer or transaction.
2.4. In the event of any Drop Ship delivery, the
Customer shall ensure that the End User complies with the Customer’s
obligations as set out in these Terms and Conditions of Sale.
3.
Price
3.1.
The price is exclusive of VAT and is
based on costs current at the date of the order acknowledgement or at the date
of the Company’s quotation, whichever is earlier.
3.2.
The cost of delivery is not included
in the price and will be charged separately.
3.3.
Catalogues, price lists and other
advertising literature or material, as used by the Company, are intended only
as an indication to price and range of goods offered and no prices, descriptions
or other particulars contained therein shall not be binding on the Company.
4.
Orders
4.1.
Sales orders are subject to
availability of the goods and to written acceptance by the Company’s authorized
representative. There shall be no binding agreement between the parties until
such acceptance takes place. Any prior confirmation by the Company by facsimile
web-site, e-mail or telephone shall be deemed to be provisional only.
5.
Carriage and Delivery
5.1. Except as previously agreed in writing by
the Company, prices do not include delivery charges to the Customer and the
Company reserves the right to levy charges for delivery to any destination
advised by the Customer.
5.2. Delivery date(s) referred to in the
Contract or in any quotation, or in any order acknowledgment, order acceptance
or elsewhere are approximate only and not of any contractual effect. While the
Company will use all reasonable endeavours to meet any scheduled delivery date
so referred to in the Contract, it will not be liable for any loss or damage
(including loss of use, loss of contract or loss of profits) incurred by the
Customer as a result of any failure to deliver on any particular date.
5.3. The Company reserves the right to make
delivery by instalments unless otherwise agreed in writing. Each delivery will
be deemed to constitute a separate enforceable contract to which these terms
and conditions will apply. If the Customer refuses or fails to take delivery of
goods tendered in accordance with these terms and conditions, delivery will nevertheless
be deemed to have taken place for the purpose of the Company’s rights to
payment and the Company will be entitled to store the goods at the Customer’s
risk and expense, including all transportation charges. Failure by the Customer
to accept or pay for any instalment may be treated by the Company to deliver
any one or more of the instalments. Any claim by the Customer in respect of any
one or more instalments shall not entitle the Customer to treat the relevant
contract as a whole as repudiated.
5.4. The Company shall have no liability to the
Customer in respect of any shortages in quantities delivered against orders or
in respect of goods damaged in transit before delivery unless full details of
such alleged shortages or damage is notified to the Company within 3 business
days except in the case of Televisions and Display Panels, where the customer
must examine the goods immediately upon delivery and satisfy themselves that
the products are in good condition, specifically that there is no damage to the
screens and that the exterior of the products are in good condition. The
Customer must then indicate this on the POD and sign the POD accordingly. The
Customer must not sign the POD “unchecked” or “unexamined” or use any such
similar wording. A signed POD by or on behalf of the Customer shall be
conclusive evidence of delivery and (except to the extent that any damage or
discrepancy is noted on the POD) that it was received in good order and
condition and accordingly no claims shall be brought in respect of the delivery
claiming the contrary. Alleged damage to Televisions & Display Panels must
be notified to the company within 48 hours of the delivery. The Company
reserves the right to reject claims of damage in transit of Televisions &
Display Panels 48 hours after the goods have been delivered.
5.5. In the event of any Drop Ship delivery, the
Customer shall ensure that the End User complies with the Customer’s
obligations as set out in the above clauses 5.2, 5.3 and 5.4.
6.
Payment
6.1. Unless otherwise agreed, full payment must
be received in our bank prior to dispatch of goods. Payment must be made by the
following means: Electronic Transfer, Bank Draft, Credit Card, Debit Card or
Company Cheque.
6.2. The Company reserves the right to apply a
surcharge for Credit Card or Debit Card.
6.3.
The Company reserves the right to
charge for any omission or additional cost arising from the provision of
inaccurate, misleading or insufficient information by the Customer.
6.4.
Payments which are not received when
payable will be considered overdue and remain payable by the Customer together
with interest for late payment from the date payable at the statutory rate
applicable as well after as before any judgment, and independent of such
judgment. This interest will accrue on a daily basis and be payable on demand.
6.5.
Notwithstanding the above provision
for late payment, in this event the Company may, at its option, and without
prejudice to any other remedy at any time after payment has become due,
terminate or temporarily suspend performance of the Contract.
6.6.
The Company reserves the right, by
giving notice to the Customer at any time before delivery, to increase the
price of the goods to reflect any increase in the cost to the Customer which is
due to any fact beyond the Company’s control, such as, but not limited to, 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 or specifications for the
goods which is requested by the Customer, or any delay caused by any
instructions of the Customer or by the Customer’s failure to give the Company
adequate information or instructions.
7.
Transfer of Property
7.1. The Goods shall be at the Customer’s risk i.
in the case of goods to be delivered at the Company’s premises, at the time
when the Company notifies the Customer that the goods are available for
collection; or ii. in the case of goods to be delivered otherwise than at the
Company’s premises, at the time of delivery or, if the Customer wrongfully
fails to take delivery of the Goods, at the time when the Company has tended
delivery of the Goods.
7.2. Title to the goods shall not pass from the
Company until the Company has received in cash or cleared funds payment in full
of the purchase price and all other sums, howsoever arising and for which
payment is due from the Customer to the Company.
7.3. Until such time as title to the goods has
passed to the Customer as provided for hereunder, the Customer shall hold the
goods as the Company’s fiduciary agent and Bailee and the Customer shall keep
the goods separately from all other goods in its possession, properly stored
and protected and marked in such a way that they are clearly identified as the
Company’s property.
7.4. The Customer may sell or use the goods in
the ordinary course of the Customer’s business after delivery but before title
to the Goods has passed from the Seller to the Customer, provided that the
proceeds of all such sales by the Customer shall be kept in a separate account
and provided also that the Customer’s power of sale shall automatically cease
if:
i)
the Customer becomes unable to pay its
debts as they fall due;
ii)
(being a company), the members of the
Customer resolve to wind the customer up;
iii)
(being a company), a petition for the
winding up of the Customer is presented;
iv)
(being an individual), a petition for
the bankruptcy of the Customer is presented;
v)
(being an individual), the Customer
dies;
vi)
the Customer ceases or threatens to
cease to carry on its business or a material part of its business;
vii)
(being a company), a petition for the
appointment of an examiner the Customer is presented;
viii)
a receiver is appointed over any of
the undertaking, property or assets of the Customer; or
ix) the Customer enters into an arrangement
or composition with or for the benefit of its creditors.
7.5. Until such time as title to the goods has
passed from the Company, the Customer shall at the Customer’s cost, upon
request by the Company deliver up to the Company such of the goods as have not
ceased to be in existence or re-sold. If the Customer fails to do so, the
Company, its agents, employees and/or representatives may enter upon any
premises owned, occupied or controlled by the Customer where the goods are
situated and repossess the goods. On the making of such request, the right of
the Customer to sell the goods as outlined in clause 7.3 shall cease.
7.6. The Customer shall not pledge or in any way
charge by way of security for any indebtedness, any of the goods which are the
property of the Company but if the Customer does so, all monies owing by the
Customer to the Company shall (without prejudice to any other right or remedy
of the Company) forthwith become due and payable. The Company shall insure and
keep insured the goods to their full value against all risks to the reasonable
satisfaction of the Company up to the date that title to the goods passes from
the Company, and shall, whenever requested by the Company, produce a copy of
the policy of insurance.
8.
Warranty
8.1. One year’s warranty applies to all products
as standard unless expressly applied by the manufacturer. Any warranty will
become VOID in the following circumstances:
1. if serial Numbers are removed.
2. Damage is caused to the product by the
end-user.
8.2. Unless otherwise notified in writing to the
Customer, the Company warrants to the Customer that the Goods will be free from
defects in material and workmanship for a period of a year from the date of receipt
thereof by the Customer subject to the following conditions:
i)
The Company shall be under no
liability for any defect arising from fair wear and tear, wilful damage,
negligence, abnormal working conditions, failure to follow the Company's
instructions (whether oral or in writing), misuse or alteration or repair of
the goods without the Company's approval;
ii)
The Company shall be under no
liability under the above warranty, otherwise, if the total price for the goods
has not been paid by the due date of Payment;
iii)
The Company shall be under no
liability under the above warranty, or otherwise unless he receives written
notice that the goods are defective within 14 days of such defect becoming
apparent.
9.
Returns
9.1. If any Goods are or become defective in
accordance with section (8) herein, the Customer must obtain an RMA (Return
Merchandise Authority) number from the Company for each product and, in order
to do so, must have ready the invoice number related to the faulty product. The
RMA number must be applied online on the Company’s web-site through the
customer’s account log-in (Requests can be processed on-line 24 hours a day, 7
days a week). The Company will issue an RMA number based on the customer’s
request by email to the customer’s email address that logged the RMA request.
The RMA number is issued based on the understanding that the information
provided (including but not limited to POP’s and fault descriptions) by the
customer is correct and the Company will employ and pay for a courier to collect
the goods under the RMA number supplied. If any of the information provided by
the customer is found to be incorrect then the products concerned will be
returned to the customer and the Company reserves the right to charge the
customer for inspecting, testing and shipping these returned items. If the
goods under the RMA number supplied are not ready when the courier calls to collect,
then the onus is put on the customer to return them to the Company at their
expense after this time bearing in mind that the RMA number supplied by the
Company will be valid for a period of seven days from the date of issue by the
Company. The Company will refuse delivery of Goods after this period. Any Goods
returned must have the RMA number marked clearly on the package; this is
provided by the Company on the authorisation email. The products must be returned undamaged in original packaging together with all original materials. In relation to partly returned products or products in a non-saleable
condition, the Company reserves the right to charge the cost to the Customer of
bringing the product to a saleable condition or a like for like swap out will
be carried out. The Company will refuse delivery of any goods returned without
the correct RMA number or will return these goods directly to the customer. All
RMA goods must be properly packaged or damages caused by insufficient packaging
will be borne by the customer. The Company will also bear the cost of returning
the repaired or replacement goods to the customer. All products returned as
faulty for repair or for DOA (Dead On Arrival) will be inspected and tested by
the Company to the fault as supplied by the customer. If the returned product
cannot be verified as having the fault as described by the customer or the
product is found to meet and function at the manufacturer's specification,
these products will be returned to the customer as “no fault found” and the
Company reserves the right to charge the customer for inspecting, testing and
shipping these returned items. Products returned in fully packaged product and
verified as faulty under DOA will be replaced by the Company with a brand new
product of the same model or alternatively by a model with a higher
specification. The Company reserves the right to replace a returned DOA product
from one manufacturer with another manufacturer’s product; the Company will
ensure that the replacement product is an equivalent or higher specification.
All other products returned for repair outside of the DOA period will be
repaired or replaced on a like for like basis. (See our Full Returns Policy
Document on our web-site www.totalimports.ie).
10.
Exclusion of Liability
10.1. Save as expressly provided in condition 8
above, the Company disclaims and excludes all other warranties, conditions or
other terms whether express or implied in law or otherwise, and the above
warranties are in lieu of all obligations and liabilities on the part of the
Company for damages arising out of or in connection with the goods, including,
without limitation, any warranty of satisfactory quality or fitness for a
particular purpose. The Company shall be under no liability of whatsoever kind
howsoever caused whether or not due to the negligence or wilful default of the
Company or its servants or agents arising out of or in connection with the
Goods or the contract.
10.2. If it should be held by a court of law in
relation to any claim that paragraph 10.1 above is not effective, liability of
the Company shall be limited to:
i)
The reasonable cost of remedying the
breach provided that the Company shall first be afforded the opportunity of
carrying out such remedial work.
ii)
Any liability of the Company for
direct physical injury or death caused solely either by defects in any of the
goods or by the negligence of its employees acting within the course of their
employment and the scope of their authority.
iii)
Any liability of the Company for
breach of its implied undertakings as to title
iv)
Where the Customer deals as a
consumer, any liability of the Company for breach of its implied undertakings
as to conformity of the goods with description or sample or as to their quality
or fitness for a particular purpose.
10.3. Subject to clauses 10.2(i) and 10.2(ii), the
Company’s liability for any breach of these terms and conditions or the
Contract will be limited to a refund of the Charges paid by the Customer for
the Products. In no event will the Company be liable for any costs of procurement
of substitute products.
10.4. Except as otherwise expressly stated in these, the Company’s terms and conditions of sale, the Company disclaims all liability to the Customer in connection with these terms and conditions including the Customer’s use of the goods, and in no event will the Company be liable to the Customer for indirect or consequential damages or for loss of profits or arising from loss of data. Please note that all user-data must be securely removed prior to return. Total Import Solutions accepts no responsibility for data.
11. Disclaimer of Liability
11.1. All information, functional and product descriptions, and price information (offers) at this website are for information purposes only. Although the Company strives for the technical and factual correctness of the information, errors cannot be completely ruled out. The Company therefore assumes no liability for the correctness, completeness or currency of the information. Liability claims against the Company that are related to material or immaterial damage that are based on use or failure to use the information offered, or the defectiveness or incompleteness of the information offered are fundamentally excluded. All offers are non-binding and subject to change. The Company reserves the right to make partial or complete changes, additions, deletions and temporary or permanent adjustments to the publication without further notification.
12.
Software Programs
12.1. Copyright software programs supplied by the
Company (whether independently of or in conjunction with the Goods) shall
remain vested in the Company or the owner thereof (as the case may be). The
Customer shall not reproduce or adapt such software programs (in whole or in
part) without prior written consent of the Company.
12.2. The Company makes no warranty that Software
programs shall be free from errors or viruses.
12.3. The Company will have no liability under this
clause for:
i) any infringement arising from the
combination of goods supplied by the Company with other goods not supplied by
the Company; or
ii) the modification of the goods unless the
modification was made or approved expressly by the Company; or iii. supplying
the Customer with any information, data, service or application assistance
12.4. In no circumstances will the Company be liable
for any costs or expenses incurred by the Customer in respect of any
intellectual property right infringement of the goods if such act/s of
infringement is/are carried out without the Company’s express authorisation
13.
Force Majeure
13.1. The Company shall not be under any liability
of whatsoever kind for non-performance in whole or in part of its obligation
under the contract due to causes beyond the control either or the Company or
the Company's suppliers including but not limited to war (whether an actual
declaration is made or not), sabotage, insurrection, riot or other act of any
Civil Disobedience, Acts of the Customer or a third party, failure or delay in
transportation, acts of any Government or any agency or subdivision thereof,
Government regulations. Judicial actions, labour disputes, strikes embargoes,
illness, accident, fire, explosion, flood, tempest or other acts of God, delay
in delivery to the Company or the Company's supplier or shortage of labour,
fuel, raw materials or machinery or technical failure. In any such event, the
Company may, without liability, cancel or vary the terms of the contract
including but not limited to, extending the time for performing the contract
for a period at least equal to the time lost by reason of such event.
14.
Breach and Financial Conditions of Customer
14.1. If any of the Customer's obligations to the
Company under this or any other contracts are not fulfilled or if the
Customer's financial condition at any time does not, in the Company's
unfettered judgment, justify continuance of the contract on the terms of
payment specified, the Company may, without prejudice to any other rights it may
have, cancel or suspend any outstanding order or any deliveries or manufacture
of any of the goods unless the Customer makes such payment for any of the goods
ordered as the Company may require.
14.2. If an order or delivery is so cancelled or
suspended by the Company, the Customer shall indemnify the Company on demand
against all losses (including loss of profit) costs (including the costs of all
labour and materials used and overheads incurred) damages, charges and expenses
arising out of the order and the cancellations of suspension thereof (the
Company giving credit for the value of any such materials sold or utilised for
other purposes). The Company will not entertain the cancellation of any orders
where the product concerned is ordered specifically for the customer. The
Company to do so, for example, where the Customer is unable to pay its debt in
time or where the Customer is unable to carry on business. In this instance,
the Company will only take back stock that is in a resale able condition. A credit
note will be issued for stock returned at the lesser of the following:
i) Original price less 15% re-stocking
fee
ii) The net realisable value of the stock.
15.
Indemnity
15.1. The Customer shall comply with all
instructions of the Company and all legislation in relation to the use,
processing, storage and sale of goods and shall indemnify the Company against
any cost, claim, demand, expense or liability which the Company may incur
arising out of or in connection with such use, processing, storage or sale.
16.
Assignment
16.1. The customer shall not assign or transfer or
purport to assign or transfer the contract or the benefit thereof to any other
person.
17.
Sub-Contracts
17.1. The Company reserves the right to
sub-contract the performance of contract or any part thereof.
18.
Arbitration
18.1. In the event of a dispute arising which is
not satisfactorily resolved, the Company reserves the right to refer such
dispute to arbitration with the Arbitrator to be appointed by the Law Society
of Ireland
19.
Severability
19.1. If any of the foregoing provisions of is
judged to be illegal or unenforceable, the continuation in full force and
effect of the remainder of them will not be prejudiced.
20.
Proper Law and Jurisdiction
20.1. The contract shall be governed by and
construed in accordance with Republic of Ireland law and the Courts of the
Republic of Ireland shall have nonexclusive jurisdiction to hear all disputes
arising in connection with the contract.
21.
Headings
21.1. The headings of these conditions are for convenience only and shall have no effect on the interpretation thereof.