Art Marketing Terms & Conditions of Sales
ART MARKETING TERMS AND CONDITIONS OF SALE (these "Terms and Conditions")
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Contract” means the contract formed as detailed in clause 2, which shall incorporate, and be subject to, these Terms and Conditions;
“Customer” means the sole trader, firm or corporate body ordering the Goods. Where the person ordering the Goods is an individual doing so on behalf of a business, that person confirms they have the authority to contractually bind and enter into the Contract on behalf of that business and the business shall be the Customer in the context of this Contract;
“Delivery Date” means the estimated date on which the Goods are to be delivered;
“Goods”means the goods which are to be supplied by us to you as specified in your Order (and confirmed by us in accordance with clause 2.1);
“Order” means your order for the Goods; and
“Price” means the price payable for the Goods.
1.2 Each reference in these Terms and Conditions to:
1.2.1 “we”, “us” and “our” is a reference to the Company and includes our employees and agents;
1.2.2 “you” and “your” is a reference to the Customer and includes your employees and agents;
1.2.3 “writing” and “written” includes letters, emails and faxes;
1.2.4 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.5 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.2.6 a clause is a reference to a clause of these Terms and Conditions; and
1.2.7 a “Party” or the “Parties” refer to the parties to these Terms & Conditions.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon their interpretation.
1.4 Words imparting the singular number shall include the plural and vice versa. References to any gender shall include all genders.
2. Contract
2.1 A legally binding Contract between the parties will be created upon our acceptance of your Order. The Contract will incorporate and be subject to these Terms and Conditions. Orders will be confirmed by way of the sooner of:
2.1.1 Our confirmation in writing; or
2.1.2 The provision of our invoice for the Goods.
2.2 If you send us an order, we will check the prices on your order against our up-to-date price list. We reserve the right to amend any incorrect prices on orders received. If the prices do not match, we will contact you to advise of the correct price and will obtain your consent before proceeding.
2.3 Any quotation we provide will be valid for a period of 30 days from the date of issue unless expressly stated otherwise. Prices are liable to change based upon the volume of goods in your order.
2.4 Orders can be placed by email, online or via one of our field sales representatives.
2.5 No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in accordance with clause 2.1, by an authorised representative of ours.
2.6 If the Goods are not in stock or are only partially in stock when you place your Order, we will contact you to advise of this and to ask if you would prefer us to deliver the Goods in instalments as they arrive in stock or if you would prefer to wait for the entire delivery when we have all the Goods in stock. If the Goods are unavailable when your order is placed, a back order will automatically be created. Your back order will subsequently be delivered once the Goods are back in stock.
Any sales literature, price lists and other documents issued by us in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable
2.7 of acceptance. We reserve the right to correct any typographical, clerical or other accidental errors without liability.
2.8 Approved imagery can be obtained by the Art Marketing Customer Service team for your own marketing material.
3. The Goods
3.1 None of our employees or agents are authorised to make any representations concerning the Goods unless confirmed by us in writing. In entering into the Contract, the Customer acknowledges that they do not rely on, and waive any claim for breach of, any such representations which are not so confirmed.
3.2 We reserve the right to make any changes in the specification of the Goods that may be required to conform to any applicable safety or other legal or regulatory requirements without notice.
3.3 The specification for the Goods shall be as set out in our sales documentation. Any initial Order must be a minimum of £750 excl VAT. Initial Orders received for quantities other than these minimum units will be adjusted accordingly. Orders thereafter must hold a value of £400 excl VAT to warrant FOC delivery. Orders of greeting cards must be a minimum of £200 excl VAT for the initial Order. Thereafter the minimum order is 24 packs @ £160 excl VAT.
3.4 Any illustrations, photographs or descriptions we provide, whether on our website or in catalogues, brochures, price lists, quotations or other documents issued by us are intended as a guide only and shall not be binding.
3.5 You may change your Order at any time before we have processed the Order by contacting us in writing or by telephone. If your Order can be changed, we will inform you of any change to the Price.
3.6 No order which has been accepted by the Company may be cancelled by you except with our agreement in writing on the terms that you shall indemnify us in full against all loss (including loss of profit), costs (including all labour and materials used), restocking, charges and expenses incurred by us as a result.
3.7 We may cancel your Order at any time before we dispatch the Goods if Goods are no longer in stock and we are unable to re-stock (if, for example, the Goods are discontinued), if the Customer goes into administration, becomes insolvent or bankrupt or we reasonably believe this is about to occur, or an event occurs outside of our control (please see clause 15 below). The cancellation will be confirmed by us in writing.
3.8 If we cancel your Order and you have already paid for the Goods under clause 5, we will raise a credit note unless otherwise agreed.
3.9 It is your responsibility to ensure that any use, re-sale or distribution of the Goods by you is in compliance with all instructions issued by us, and any applicable statutory requirements. If the Goods are to be shipped, re-sold or distributed outside of the UK, the Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon, unless otherwise agreed.
4. Account holders
4.1 A new Customer will be required to complete and return an account application form to us before any Order can be placed.
4.2 Customers need to complete an account application form and should we accept your account application form, at our sole discretion, we will open an account for you. This will allow us to agree a credit limit with you to facilitate your Order in a more timely way.
4.3 Any credit limit we offer to you will be subject to clause 4 and may be revoked by us at any time.
4.3.1 You agree that we may obtain, retain and provide third parties, references as to your financial standing.
4.3.2 The Company reserves the right to change payment terms and to offer, reject, amend and or withdraw credit facilities upon review at any time without notice and or explanation.
4.4 We may set a maximum amount of credit allowable upon each account and withdraw credit facilities without explanation.
5. Price & Payment
5.1 We reserve the right to increase the Price for Orders accepted by us, if the cost of the Goods to us increases due to any factor beyond our control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates. We will contact you to advise of any increase in writing.
5.2 Any Prices we provide are exclusive of VAT, delivery costs and any other taxes or levies which are imposed or charged by any competent authority.
5.3 We will invoice you once your Order has been despatched.
5.4 Subject to accepting the trade account application and satisfactory credit checks. All invoices are payable in full, without any deduction, retention or set off, strictly within 30 days from the date of invoice, or otherwise in accordance with such credit terms as may have been agreed in writing between the parties. The time for the payment shall be of the essence of the Contract.
5.5 We reserve the right to request payment up front if you do not have a credit account with us, if you exceed your credit limit, if, for any reason, we are not satisfied of your creditworthiness, or if we so decide at our sole discretion. In this event, no Goods will be released for delivery until such time as any pro-forma invoice issued by us has been paid in full, which must be paid within 7 days.
5.6 If you do not make payment to us by the due date, we may cancel your Order(s) and suspend any further deliveries to you and charge you interest on the overdue sum at the rate of 8% per annum above the Bank of England base lending rate from time to time. Interest will accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment. You must pay any interest due when paying an overdue sum and you agree to indemnify us for all costs and expenses which may incur (including legal costs). We will not charge interest if you have promptly contacted us to dispute an invoice in good faith. No interest will accrue while such a dispute is ongoing.
6. Delivery
6.1 When we confirm acceptance of your Order, we will provide an estimated delivery date. Please note that estimated delivery dates may vary according to the availability of Goods, your location, and circumstances beyond our control. Time for delivery shall not be of the essence of the Contract.
6.2 Delivery will be deemed to have taken place when the Goods have been delivered to the delivery address indicated in your Order.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by us to deliver any one or more of the instalments in accordance with these Terms and Conditions shall not entitle you to treat the Contract as a whole as repudiated.
6.4 If for any reason we are unable to deliver the Goods at your chosen delivery address, we will leave a note informing you that the Goods have been returned to our premises, requesting that you contact us to arrange re-delivery. The re-delivery and storage may be chargeable. We may also, at our discretion, charge for restocking and administration costs.
6.5 Goods are to be signed for however, if you are unavailable and would prefer to have your parcel left unattended on your premises, you can inform us of the safe place to leave the Goods. Ensure that the safe place you choose is protected and is guarded from public view to avoid damage and theft. We accept no responsibility for the Goods once they reach your designated safe place.
6.6 We may, at our discretion, decline to deliver the Goods to your chosen delivery address if we deem it to be unsuitable for any reason. In this event, we will contact you and request another delivery address or cancel your order.
7. Risk and Retention of Title
7.1 Risk of damage to or loss of the Goods shall pass to you at the time of delivery.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to you until we have received in cleared funds payment in full of the price of the Goods.
7.3 Until payment has been made to us in accordance with these Terms and Conditions, the title of the Goods will not be passed to you; you shall only be in possession of the Goods as bailee for us. The product must be stored separately in an appropriate environment; they need to be identifiable as being supplied by us, and insured against all reasonable risks.
7.4 You shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain our property, but if you do so, all money owing by you to us shall (without prejudice to any other right or remedy of ours) become immediately due and payable.
7.5 We shall be entitled at any time to require you to deliver up to us any goods in which we retain title and, if you fail to do so forthwith, to enter upon any premises of yours or any third party during normal business hours where the Goods are stored and repossess the Goods.
7.6 Your right to possession of the Goods in which we maintain legal and beneficial title shall terminate if any of the events listed in clause 9.1 occurs.
8. Sale of products to the public
8.1 When presenting any products supplied by Art Marketing to the public only images provided by Art Marketing can be used for any publicity material whether on a website or in-shop display.
8.2 In the case of internet sales you are prohibited from selling on third party platforms such as Amazon and eBay or similar.
9. Cancellation
9.1 No Order which has been accepted by us may be cancelled by a Customer except with our agreement in writing on the terms that the Customer shall indemnify us in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, restocking, charges and expenses incurred by us as a result of such cancellation.
9.2 If, on delivery, you are not satisfied with the Goods and wish to return them, you may do so only provided:
9.2.1 you inspect the Goods on delivery. Where the Goods cannot be examined the delivery note or such other note as appropriate shall be marked “not examined”.
9.2.2 you inform us that you wish to return the Goods within 7 working days of delivery;
9.2.3 the Goods remain in their original condition (as delivered);
9.2.4 the Goods are returned at your risk and you agree to bear the cost of delivery to us; and
9.2.5 you indemnify us against any cost incurred by us in rectifying any deterioration of the Goods caused by incorrect storage or use while in your possession.
9.3 If, on receipt, the Goods are proven by us to be damaged or defective, and you comply with clause 8.2 above, we may refund the cost of delivery at our discretion.
9.4 All Goods must be returned to us under this clause 8 in their original condition, in their original, un-opened packaging, accompanied by proof of purchase.
9.5 Replacement of the Goods (or the defective part thereof), or any credit or refund offered at our discretion, shall be issued to you only upon the receipt of the Goods in accordance with this clause 9.
10. Termination
10.1 We may cancel any Order and/or suspend further deliveries, terminate your account and charge interest in accordance with clause 5.6 if:
10.1.1 you fail to perform or observe any of your obligations under the Contract or if you are otherwise in breach of the Contract;
10.1.2 you become subject to an administration order or enter into a voluntary arrangement or (being an individual or firm) become bankrupt or (being a company) go into liquidation;
10.1.3 an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets;
10.1.4 you cease, or threaten to cease, to carry on business; or
10.1.5 we reasonably apprehend that any of the events mentioned above is about to occur in relation to you and we notify you accordingly.
10.2 If sub-clause 9.1 applies then, without prejudice to any other right or remedy available to us, payment for any Goods that have been delivered but not paid for shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. We shall be entitled at any time to require you to deliver up to us any Goods in which we retain ownership and, if you fail to do so forthwith, to enter upon any premises of yours or any third party during normal business hours where the Goods are stored and repossess them.
11 Assignment: We may assign the Contract or any part of it, and may sub-contract any of our obligations to any person, firm or company without your prior consent. You shall not be entitled to assign the Contract or any part of it without our prior written consent.
12. Guarantee
12.1 Provided payment has been made in accordance with clause 5, and once the Thomas Kent clocks have been delivered, all Thomas Kent clocks shall be granted a 2-year guarantee from the point of resale.
12.2 If any movement defects appear due to no fault of the end customer during this period, we will rectify any and all such defects at no cost to them and it is your responsibility to contact Art Marketing on behalf of the end customer.
12.3 This guarantee is subject to:
12.3.1 proof of resale date by you;
12.3.2 you providing written notice to us within 24 hours of becoming aware of any such defect; and
12.3.3 the end customer following all instructions issued by us;
12.4 We accept no liability in respect of the following:
12.4.1 damage due to causes beyond our control including, but not limited to, accident, misuse, faults or premature deterioration which result from the end customer's failure to comply with our maintenance instructions that are issued with the Goods;
12.4.2 cosmetic damage, battery leakage or deterioration arising out of normal wear and tear; or
12.4.3 goods that are not supplied by us.
13. Limitation of Liability
13.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.2 Nothing in these Terms and Conditions excludes or limits our liability for death or personal injury caused by our negligence; fraud or fraudulent misrepresentation; or any other matter which it would be illegal for us to exclude or attempt to exclude our liability.
13.3 Subject to sub-clauses 13.1 and 13.2:
13.3.1 We shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to improper conditions, failure to follow our instructions (whether given orally or in writing), misuse, attempted repair or alteration of the Goods without our prior approval, or any other breach of these conditions or act or omission on the part of the Customer, its employees or agents or any third party;
13.3.2 our 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 Contract Price; and
13.3.3 we shall not be liable to you for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
14. Confidentiality
14.1 You will regard as confidential the Contract and all information obtained by you relating to our business and/or Goods and will not use or disclose to any third party such information without our prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of your default.
14.2 The provisions of this clause 14 shall survive the termination of the Contract.
15. Force Majeure: Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, acts of terrorism or war, governmental action or any other event beyond the control of the Party in question.
16. Communications: All notices under these Terms and Conditions shall be addressed to the most recent address or email address notified to the other party, in writing and signed by, or on behalf of, the party giving notice. Notices shall be deemed to have been duly given: when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; when sent, if transmitted by email and a successful return receipt is generated; on the fifth day following mailing, if mailed by national ordinary mail; or on the tenth day following mailing, if mailed by airmail. >
17. Entire agreement
17.1 No terms or conditions stipulated or referred to by you in any form whatsoever shall in any respect vary or add to these Terms and Conditions unless otherwise agreed by us in writing.
17.2 No variation by you to these Terms and Conditions, or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the parties.
18. Data Protection: All information that we may collect will be collected, used and held in accordance with the provisions of the Data Protection Act 2018 and any amendments thereto.
Third Party Rights: The Contract is between you and us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions pursuant to the Contracts (Rights of Third Parties) Act 1999.
20. Severance: The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
21. Waiver: The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
22. Governing Law and Jurisdiction
22.1 These Terms and Conditions and the Contract shall in all respects be governed by, and construed in accordance with the laws of England and Wales.
22.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales.