Terms and Conditions

INTERPRETATION

1.1 In these Conditions:

“Buyer” means the customer named in the sales invoice.
“Conditions” means the standard terms and conditions of sale set out in this document and any other special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means any contract between the Seller and the Buyer for the sale of the Goods and/or supply of Services incorporating these Conditions.
“Data Services” means the Barn Owl wireless remote monitoring, control and data storage services (if any) which the Seller agrees to supply in accordance with these Conditions.
“Goods” means any goods which the Seller agrees to supply in accordance with these Conditions (excluding, for the avoidance of doubt, Serviced Products).
“Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
“Product Services” means services and repair services supplied by the Seller to the Buyer for any equipment belonging to the Buyer.
“Seller” means Martin Lishman Ltd (Registered Company Number 03793534), whose registered office is at Albion House, 32, Pinchbeck Road, Spalding, Lincs PE11 1QD and trading address is: Unit 2b, Roman Bank, Bourne, Lincs PE10 9LQ.
“Serviced Products” means equipment belonging to the Buyer which has been serviced and/or repaired by the Seller pursuant to these Conditions.
“Services” means the Data Services and the Product Services.

BASIS OF CONTRACT

2.1 All sales of Goods and/or supply of Services by the Seller to the Buyer are subject to these Conditions to the exclusion of all other terms (including any terms which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).

2.2 Each order for Goods and/or Services received by the Seller from the Buyer shall be treated as an offer by the Buyer to purchase Goods and/or Services subject to these Conditions.

2.3 Alterations to these Conditions will not have effect unless agreed with the Seller in writing at the time of placing the order.

2.4 Quotations provided by the Seller shall not constitute offers, are made subject to these Conditions and are only valid for the time specified on the individual quotation.

2.5 The Buyer’s order shall only be deemed to be accepted when the Seller issues written acceptance of the order at which point and on which date the Contract shall come into existence (“Commencement Date”).

2.6 The Seller’s employees or agents are not authorised to make any representations concerning the Goods and/or Services (including advice or recommendation as to application or use) unless confirmed by the Seller in writing. In entering into the Contract, the Buyer shall not rely on, and waives any claim for breach of any representations which are not confirmed by the Seller in writing. This Condition shall not limit the Seller’s liability for fraudulent misrepresentation.

2.7 Any typographical, clerical or minor/other error or omission in any sales literature, price list, acceptance of offer, invoice or any other document issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2.8 In order to receive Product Services from the Seller, the Buyer will need to deliver the equipment to be serviced or repaired to the Seller’s premises (at the Buyer’s cost) in accordance with the timescales set out in the Contract. Such equipment will be held by the Seller at the Seller’s premises at the Buyer’s risk.

ORDERS AND SPECIFICATIONS

3.1 The Buyer shall ensure any order for the Goods and/or Services is accurate and complete.

3.2 Subject to Condition

3.3, the quantity and description of the Goods will comply with the specification set out in the Seller’s acknowledgement of order or, in its absence, the Seller’s quotation and the Services will be performed with reasonable skill and care.

3.3 The Seller may, at its discretion, agree in writing to ensure that the Goods and/or Services comply with a specification provided to it, in writing, by the Buyer. The Buyer will ensure that its specification is accurate and complete. The Buyer will promptly provide to the Seller any information relating to the Goods and/or Services which the Seller may require to perform its obligations under the Contract.

3.4 If the Goods are to be manufactured or any process is to be applied to the Goods and/or Services by the Seller in accordance with a specification agreed in accordance with Condition 3.3, the Buyer shall indemnify the Seller against all liabilities, losses, damages, costs and expenses (including any direct or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Seller arising out of or in connection any claim made against the Seller for actual or alleged infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification. This Condition 3.4 shall survive termination of the Contract.

3.5 The Seller reserves the right to make any changes to the Goods and/or Services which are required to conform to any applicable statutory or regulatory requirements. If such amendments will materially change the nature or quality of the Goods and/or Services, the Buyer may then cancel the Order.

3.6 Except as otherwise specified within these Conditions, the Buyer shall not be entitled to cancel an order unless otherwise agreed in advance and in writing with the Seller. The Buyer shall indemnify the Seller in full against any loss (including loss of profit, costs of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation.

PRICES

4.1 The price of the Goods and/or Services shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order.

4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, 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 the specification for the Goods and/or Services requested by the Buyer, or any delay caused by the Buyer.

4.3 Except as otherwise stated in any quotations, the Seller’s price list or agreed in writing between the Buyer and the Seller, all prices given by the Seller are ex works (Incoterms) and exclusive of amounts in respect of value added tax chargeable from time to time (VAT) and other similar taxes or levies and costs or charges in relation to packaging, labelling, loading, unloading, carriage, freight and insurance. Where any taxable supply for VAT or other similar taxes or levies and costs or charges is made under the Contract by the Seller to the Buyer, the Buyer shall, on receipt of a valid invoice from the Seller, pay to the Seller such additional amounts in respect of VAT and other similar taxes or levies and costs or charges as are chargeable on the supply of the Goods and/or Serviced Products at the same time as payment is due for the supply of the Goods and/or Serviced Products.

4.4 The Seller reserves the right to reject any order which has a value of less than £10.

TERMS OF PAYMENT

5.1 Unless otherwise agreed in writing by the Seller and the Buyer, the Seller shall be entitled to invoice the Buyer for the price of the Goods and/or Services at any time on or after delivery has taken place in accordance with Condition 6. Where the Goods and/or Serviced Products are to be collected by the Buyer, or the Buyer fails to take delivery of the Goods and/or Serviced Products in which case, the Seller shall be entitled to invoice the Buyer at any time after the Seller has notified the Buyer that the Goods and/or Serviced Products are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods and/or Serviced Products.

5.2 Time of payment shall be of the essence. The Buyer shall pay the price of the Goods and/or Services in full without any set-off, counterclaim, deduction or withholding (other than any discount to which the Buyer is entitled, or any deduction or withholding of tax as required by law)) according to the payment terms stated in the Seller’s invoice. Receipts will be issued only upon request.

5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

5.3.1 cancel any or all Contracts with the Buyer;
5.3.2 suspend any further deliveries to the Buyer;
5.3.3 return any of the Buyer’s equipment prior to completion of Product Services;
5.3.4 appropriate any payment made by the Buyer to such of the Goods and/or Services (or the goods or services supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit; and
5.3.5 charge the Buyer interest (both before and after any Judgment) on the amount unpaid, at the rate of 2.5 percent above the base rate of Lloyds Bank plc per month on all outstanding amounts.

DELIVERY OF GOODS AND/OR SERVICES

6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at the time notified to the Buyer by the Seller or if some other place for delivery is agreed by the Seller in writing, by the Seller delivering the Goods to that place subject to the Buyer providing, at its expense at the place of delivery, adequate and appropriate equipment and manual labour for unloading the Goods.

6.2 Any dates quoted for delivery of the Goods and/or the Services are approximate only and the Seller shall not be liable for any delay in delivery of the Goods and/or Serviced Products howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3 The Seller reserves the right to deliver up to 10 percent more or 10 percent less than the quantity ordered without any adjustment in the price and the quantity so delivered shall be deemed to be the quantity ordered.

6.4 The Seller shall be entitled, at its discretion, to deliver the Goods in instalments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.5 If the Seller fails to deliver the Goods (or any instalments) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, the Seller’s liability to the Buyer shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

6.6 If the Buyer fails to collect or take delivery of the Goods (or fails to give the Seller adequate delivery instructions) at the time stated for collection or delivery then, without prejudice to any other right or remedy available to the Seller, the Seller may:

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

6.7 Once the Product Services are complete and payment is received, the Serviced Products will be released and returned to the Buyer (at the Buyer’s cost). The Product Services will be delivered by the Seller in accordance with the terms agreed between the Seller and the Buyer as set out in the Contract. All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The Seller shall have no liability for any claim arising from damage or loss occurring during transit.

6.8 The Goods will be deemed to have been accepted and/or the Services will be deemed to have been properly performed unless the Buyer notifies the Seller of any defects or issues within 7 days of delivery, or, where the defect or issue was not apparent on reasonable inspection, 7 days of the discovery of the defect or issue or within 7 days of when the defect or issue ought reasonably to have been discovered. The Buyer will not be entitled to reject the Goods and/or Services after such 7 days have expired. If the Buyer rejects the Goods and/or Services during such 7 days, the Seller’s liability to the Buyer shall be limited to replacing the defective Goods within a reasonable time and/or the Buyer may return the Serviced Products to the Seller (at the Buyer’s cost) for evaluation by the Seller.

6.9 The Seller’s liability to the Buyer for any failure in performing the Services shall be limited to repeating all or part of the Product Services free of charge or refunding all or part of the price paid for such Product Services, but the Seller shall have no further liability to the Buyer.

RISK AND TITLE IN RELATION TO GOODS

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller tendered delivery.

7.2 Title in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3 Until title in the Goods passes to the Buyer, the Buyer shall:

7.3.1 hold the Goods as the Seller’s fiduciary agent and bailee;
7.3.2 keep the Goods separate from those of the Buyer and third parties and identified as the Seller’s property;
7.3.3 properly store, protect and insure the Goods;
7.3.4 (provided the Goods are still in existence and have not been resold at the Seller’s request) deliver up the Goods to the Seller, and if the Buyer fails to do so forthwith allow the Seller to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods; and
7.3.5 not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all the monies owing by the Buyer to the Seller shall (without prejudice to any other right of remedy of the Seller) forthwith become due and payable.

7.4 The Buyer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

GOODS’ WARRANTIES

8.1 Subject to Condition 8.2 below, the Seller warrants that the Goods will correspond with the applicable specification and will be free from material defects in materials and workmanship for a period of 12 months from the date of delivery and will not infringe the patent, copyright, design rights, trademarks or any other intellectual property rights of any other person (“Intellectual Property Infringement”).

8.2 The Seller shall not be liable:

8.2.1 for any defect in, or Intellectual Property Infringement in respect of, the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2 for any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure by the Buyer to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods by the Buyer without the Seller’s approval;
8.2.3 to the Buyer if the total price for the Goods has not been paid by the due date for payment;
8.2.4 for any parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller if and to the extent the Seller is entitled to pass on to the Buyer the benefit of such warranty or guarantee;
8.2.5 where Goods have been modified or tampered with in any way by the Buyer; or
8.2.6 where damage or defects have been caused by the Buyer failing to comply with the instruction manual or otherwise using the Goods in an inappropriate manner.

8.3 The Buyer will ensure that all electrical equipment has been installed in accordance with the relevant installation regulations, that all appropriate safety checks have been carried out before use and that regular on-going maintenance and safety checks are undertaken.

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

8.5 Any claim by the Buyer which is based on any defect in the quality or conditions of the Goods or their failure to correspond with any applicable specification or shortages in the quantity of Goods delivered shall be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) 7 days of the discovery of the defect or failure or within 7 days of when the defect or failure ought reasonably to have been discovered.

8.6 Where any valid claim is notified to the Seller in accordance with these Conditions, the Buyer may return the Goods to the Seller (at the Buyer’s cost) for evaluation by the Seller.

8.7 In the event that, following evaluation, it is determined by the Seller that there is a breach of warranty, the Seller shall (at its option) replace the Goods (or the part in question) free of charge or refund to the Buyer the price of the Goods (or a proportional part of the price), but the Seller shall have no further liability to the Buyer.

8.8 For the avoidance of doubt, the parties acknowledge and agree that this clause 8 (Goods’ Warranties) shall not apply in relation to Serviced Products.

LIABILITY

9.1 Nothing in these Conditions or any Contract shall exclude or limit the Seller’s liability for death or personal injury caused by the Seller’s negligence, for fraudulent misrepresentation or for fraud.

9.2 Subject to Condition 9.1, the Seller shall not be liable to the Buyer for any:

9.2.1 consequential, special or indirect loss or damage; or
9.2.2 loss of anticipated or actual profits; or
9.2.3 loss of income; or
9.2.4 loss of goodwill; or
9.2.5 loss of anticipated savings; or
9.2.6 loss of business; or
9.2.7 other economic loss, howsoever caused (whether for negligence, tort, breach of contract, breach of statute or otherwise) which arises out of or in connection with any Contract (whether or not such loss was foreseen, direct, foreseeable, known or otherwise) or as a result of any third party bringing a claim in respect of any nature whatsoever.

9.3 Subject to Condition 9.1, the Seller’s total aggregate liability under or in connection with any Contract (whether for negligence, tort, breach of contract, breach of statute or otherwise) shall not exceed the greater of £1 million or a sum equivalent to the aggregate payments payable by the Buyer in accordance with the relevant Contract.

9.4 Subject to Condition 9.1, the Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods and/or Services if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control: act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether employees of the Seller or a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.

BREACH OF CONTRACT OR INSOLVENCY OF THE BUYER

10.1 Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to immediately cancel or suspend further performance of any Contract with the Buyer (including cancellation of any further deliveries, stopping any Goods/Serviced Products in transit or ceasing to deliver Services) without any liability to the Buyer if the Buyer:

10.1.1 has any distress execution or diligence levied upon any of the Buyer’s property and this is not paid within 7 days of it being levied;
10.1.2 is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;
10.1.3 calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or presents or has presented, a petition for a winding up order;
10.1.4 appoints an administrator or has an application to appoint an administrator made in respect of the Buyer or a notice of intention to do so is filed;
10.1.5 any other steps are taken to appoint an administrator by the Buyer or any third party;
10.1.6 makes any voluntary arrangement with its creditors or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or becomes subject to an administration order; or
10.1.7 an encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of the Buyer; or
10.1.8 ceases, or threatens to cease, to carry on business; or
10.1.9 has steps taken against it by a secured lender to obtain possession of the property on which that lender has its security;
10.1.10 undergoes a change of control and the person or entity that possesses, directly or indirectly, the power to direct or cause the direction of the management of the Buyer (e.g., through the ownership of voting share of power) ceases to do so and another person acquires such control over the Buyer;
10.1.11 commits a material breach of any of its obligations under any Contract which is incapable of remedy;
10.1.12 fails to remedy a breach of its obligations under any Contract (except payment) which is capable of remedy or persists in any breach after having been requested in writing by the Seller to remedy or desist such breach within 7 days;
10.1.13 fails to pay any sum due under any Contract within 7 days of it becoming due; or
10.1.14 the Seller reasonably apprehends that any of the events mentioned in Conditions 10.1.1 to 10.1.13 above is likely to occur in relation to the Buyer.

10.2 Notwithstanding any such termination or suspension in accordance with Condition 10.1, the Buyer shall pay the Seller the price for all Goods and/or Services delivered up to and including the date of termination or suspension (which shall become immediately due and payable) and the termination of any Contract shall for any reason shall not affect the rights or remedies of either party in respect of any antecedent breach.

EXPORT TERMS FOR GOODS

11.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply, notwithstanding any other provisions of these Conditions.

11.2 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and notifying the Seller of the requirements of any such legislation or regulations requiring action on the part of the Seller and for the payment of any duties in connection with the Goods and for the transportation and storage of the Goods including any obligation to translate instructions, labelling or packaging.

11.3 Unless otherwise agreed in writing between the Buyer and the Seller the Goods shall be delivered in accordance with Incoterms, in particular DAP to the delivery address specified in the Contract, and the Seller shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.

11.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods as soon as practicable on delivery at the delivery address specified in the Contract. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which has not been notified to the Seller within 10 days of delivery, or in respect of any damages during transit.

11.5 The price for the Goods shall be paid by the Buyer by international bank transfer (at the Buyer’s cost) on or after the date of the Seller’s invoice. If payment has not been received by the Seller within 30 days of the date of the Seller’s invoice, the Seller shall, at its discretion, be able to treat the order as cancelled.

11.6 The Goods will not be dispatched until payment has been received.

BARN OWL WIRELESS DATA SERVICE SPECIFIC TERMS

12.1 Where the Contract includes the supply of Data Services, the provisions of this Condition 12 shall apply.

12.2 The Seller grants to the Buyer a non-exclusive, non-transferable right to use the Data Services in conjunction with the Goods or Serviced Products and during the term specified in the Contract solely for the Buyer’s internal business operations.

12.3 The Seller shall use commercially reasonable endeavours to make the Data Services available 24 hours a day, seven days a week and correct any bugs or non-conformances promptly, however the Data Services are provided on an “as is” basis” and the Seller does not warrant that the Data Services will be uninterrupted or error-free or that the Data Services will meet the Buyer’s requirements.

12.4 The Seller is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including mobile phone networks and the internet, and the Buyer acknowledges that the Data Services may be subject to limitations, delays and other problems inherent in the use of such communication facilities.

12.5 Where the Seller holds humidity, temperature and other data collected by the Seller as part of the Data Services and made available via the Seller’s web page dedicated to the Buyer (“Buyer’s Data”) this data will be held in confidence and unless required by law Seller will not make it available to any third party or used for any purpose other than for the provision of the Data Services.

12.6 In the event of any loss or damage to Buyer’s Data, the Buyer’s sole and exclusive remedy shall be for the Seller to use reasonable commercial endeavours to restore the lost or damaged Buyer’s Data from the latest back-up of such Buyer’s Data maintained by the Seller. The Seller shall not be responsible for any loss, destruction, alteration or disclosure of Buyer’s Data caused by any third party (except those third parties sub-contracted by the Seller to perform services related to Buyer’s Data, maintenance and back-up).

12.7 The Buyer is responsible for maintaining the confidentiality of Buyer’s service password and account and is responsible for all activities that occur thereunder.

12.8 The Buyer agrees not to resell, duplicate, reproduce or exploit any part of the Data Services without the written consent of the Seller.

12.9 The Buyer shall pay the fees for the Data Services by standing order throughout the term specified in the Contract. Fees shall be paid annually in advance unless any other payment period is specified in the Contract.

12.10 In the event of late payment of fees, in addition to its other remedies under this Contract the Seller shall be entitled to suspend the Data Services until such time as payment is made.

12.11 Either party may at any time and for any reason terminate the Data Services upon giving one month’s notice in writing. In the event of termination (or expiry) of the Data Services or the Contract:

12.11.1 all licences relating to the Data Services granted under the Contract shall immediately terminate;
12.11.2 Buyer’s access to the Data Services and Buyer’s Data will be disabled;
12.11.3 Seller may destroy or otherwise dispose of any of the Buyer’s Data in its possession unless the Seller receives, no later than ten days after the effective date of termination of the Data Services a written request for the delivery to the Buyer of the then most recent back-up of the Buyer’s Data. The Seller shall use reasonable commercial endeavours to deliver the back-up to the Buyer within 30 days of its receipt of such a written request, provided that the Buyer has, at that time, paid all fees outstanding at and resulting from termination. The Buyer shall pay all reasonable expenses incurred by the Seller in returning or disposing of Buyer Data.
12.11.4 In the event of termination of a contract, the seller reserves the right to make a charge for the outstanding fixed contractual costs of maintaining the data contract.
12.11.5 In the event that the Buyer requests the reconnection of a cancelled data contract, this will incur reprogramming costs which would be advised to the Buyer by the Seller at the time of the request.
12.11.6 If the Buyer requests the temporary hibernation or suspension of a Data contract, this will incur a reduced annual charge to cover the contractual obligations necessary to provide the transmission of the data. The level of charge would be advised to the Buyer by the Seller at the time of the request.

12.12 The Buyer shall defend, indemnify and hold harmless the Seller against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Buyer’s use of the Data Services, provided that:

12.12.1 the Buyer is given prompt notice of any such claim;
12.12.2 the Seller provides reasonable co-operation to the Buyer in the defence and settlement of such claim, at the Buyers expense; and
12.12.3 the Buyer is given sole authority to defend or settle the claim.

ONLINE PURCHASE TERMS

13.1 These Terms of Purchase set out how you (the Buyer) can make purchases from our Site. Please read them carefully. We pride ourselves in providing a high level of customer service and ensuring that you are clear in respect of all of your rights relating to your purchase. Ahead of making any purchase you will be asked to tick a box on our Site which says “I Accept the Terms and Conditions of Sale”. In ticking that box, you will be accepting the terms set out here. We are based in the UK and our Terms of Purchase are governed by UK legislation. We can offer international shipping. The Terms of Use for our Site and our Privacy Statement can be found on separate pages. It is always our aim that you will be fully satisfied with your purchase. Should you have any questions about your purchase we will be happy to assist.

13.2 Purchase Terms for Physical Products: We have worked hard to create products of high quality. For the individual detail and specification of each product, please see the product description which accompanies each product listing. Please note that we take all reasonable steps and care to ensure that all details, product descriptions and prices of products are accurate. Although we aim to keep this Site as up-to-date as possible, the information available on the Site may not reflect the availability position at exactly the moment you place an order. Images of products on our Site are for illustrative purposes only. We make every effort to ensure that images are captured and displayed accurately but we cannot guarantee that the products are displayed accurately on your device. The products that you order, and the packaging of the products may vary from the images on the Site.

13.3 Cancellation Rights: As a consumer purchasing online you have the legal right to cancel your order with us. Your right to cancel begins on the date you place your order and ends 14 calendar days form the day after you receive the product. You need not provide a reason for cancelling your order; however, you must email us at sales@martinlishman.com to cancel your order. Where possible please include your order number in the correspondence. We will then respond by email to confirm that we have received notification of cancellation. In circumstances where you have already received your products. You will be required to package up the item and return it at your own cost. All products must be returned in their original packaging and condition, plus any additional packaging for returns. We reserve the right to reduce the amount of any refund offered to reflect any reduction in the value of the product which is caused by the way it is handled or returned by you. Following receipt of the returned products we will arrange for a refund to be returned to the card used for the purchase. Please allow up to 14 days for the refund to show on your bank statement. You will receive a refund for the price paid for the product and the original delivery charges, you will not receive a refund for the cost of returning the product to us. You must return the products within 30 days of the cancellation being confirmed. Return items should be sent to: Unit 2B Roman Bank, Bourne, Lincolnshire, PE10 9LQ. If we have not yet dispatched the product before you cancel, then we will process your refund within 14 days of your cancellation. If you only cancel the order in respect of some and not all of the products ordered, then you will not receive a refund in respect of the delivery charges.

13.4 Exclusions: Please note that whilst we provide refunds in accordance with the Consumer Contracts (information, Cancellation and Additional Charges) Regulations 2013, as set out above, as permitted by that legislation, we are unable to accept refunds of the following:

Items which cannot be returned for health and hygiene reasons, unless the returned to us unused and in a fully resealable condition with all hygienic seals in place and unbroken;
Items which are personalised or made to your specification;
Products which are liable to deteriorate or expire rapidly.

13.5 Faulty Goods: Nothing in these terms affects your legal rights in respective of products which are defective or not as described. If you think a product is defective or mis-described then please email Richard Jagger, Operations Manager: richard@martinlishman.com with a detailed description of the fault and, if possible, photographs of any wear and tear or similar damage to the products. You will need to return your products to: Unit 2B Roman Bank, Bourne, Lincolnshire, PE10 9LQ. All returns made as potentially defective will be examined once they have been received by us and we will notify you via email to confirm if you are entitled to a refund. Faulty goods will be replaced with a like for like replacement where possible. If you are entitled to a refund this will be provided within 30 days of when we notify you via email that you are entitled to a refund. If you are entitled to a refund as a result of a defective product, you will receive a full refund of the price paid for the product, the original delivery charges and the cost of returning the product to us.

13.6 Pricing: The prices are as quoted on the website for each item. Prices do not include VAT. The product pricing also excludes delivery charges which will be added to the total amount at the checkout. We may change our prices at any time but changes will not affect any order in respect of which we have already sent you an order confirmation. It is always possible, despite our best efforts, that some products listed on our Site may be incorrectly priced. We will normally check prices as part of our dispatch procedures so that, where a product’s correct price is less than our stated price, we will charge you the lower amount when dispatching the product to you. If a product’s correct price is higher than the price stated on our Site, we will contact you to inform you of the error and give you the option of either continuing your purchase of the product at the correct price or cancelling your order. If we are unable to contact you using the details you provided during the order process, we will treat your order as having been cancelled and notify you in writing. We are under no obligation to provide any product to you at an incorrect (lower) price if the pricing error is obvious and unmistakable and could have reasonably been recognised by you as a mispricing.

13.7 Delivery: Unless you are purchasing an item on pre-order or a bespoke customisation (where in such circumstances an estimated delivery date will be provided) delivery will take place within 30 calendar days of the date of the order confirmation. Our orders are usually sent out each working day by 3:30pm and should reach you within a 30 day period. If we do not deliver your product within 30 calendar days or within the other time period agreed between us, you may contact us to cancel your order. We are not responsible for delays outside of our control. We will contact you as soon as possible to let you know of any delay which may occur to your order and we will take steps to minimise the effect of the delay. If you provide to us any instructions relating to the delivery of your order (including, without limitation, instructions to leave the products in a particular place, outhouse or with a neighbour), you are responsible for ensuring the accuracy of these instructions and we shall not be liable to you in relation to any loss of or damage to the product resulting from our following of your instructions. Delivery will be complete when we deliver the product to the address you gave us or in accordance with your other instructions.

13.8 International Delivery: We deliver to certain countries outside of the UK. Please contact us by email to check whether we can deliver to your required location. Orders to outside the UK may be subject to import duties and taxes. You will be responsible for payment of such amounts which are not set by us but set by each location. Please contact your local customs office for further information before placing your order.

13.9 Warranty and Liability: We warrant to you that any product purchased from us will, for at least a period of 12 months from the date of delivery, be of satisfactory quality, free from material defects and reasonably fit for all the purposes for which products of the kind are commonly supplied. We will not be liable for any defect in the product arising from fair wear and tear, failure by you to follow specific care instructions, wilful damage, abnormal storage, accident, negligence by you or any third party or any alteration or repair made by you or a third party. Our liability for any losses you suffer as a result of us breaking these terms is limited to the purchase price of the product you purchased and any losses which are a foreseeable consequence of us breaking these terms. Losses are foreseeable if they are an obvious consequence of a breach or they were contemplated by you and us at the time the purchase was made. We do not exclude or limit in any way our liability:

1. For death or personal injury caused by our negligence;
2. Under section 2(3) of the Consumer Protection Act 1987;
3. For breach of the terms implied by sections 12 to 15 of the Sale of Goods Act 1979;
4. For fraud or fraudulent misrepresentation; or
5. For any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability. We only supply products for domestic and private use and you agree not to use any products for commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.

13.10 Additional Circumstances: Should you consider that you have grounds to obtain a refund which are not set out above you should email sales@martinlishman.com to set out your refund request. All refunds are provided in accordance with your statutory rights.

13.11 Law and Jurisdiction: These terms and any claim or dispute arising in relation to any purchase will be governed by English law. You and we agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any such claim or dispute.

GENERAL

14.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address notified pursuant to this Condition.

14.1.1 Any notice shall be deemed to have been received:
- (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second business day after posting or at the time recorded by the delivery service. In this Condition 14.1.1(b) business day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business; and
- (c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Condition 14.1.1(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. No waiver shall be effective unless it is made by the Seller in writing.

14.3 If any provision of these Conditions is held by any competent authority to be invalid, illegal or unenforceable in whole or in part, the validity and enforceability of other provisions of these Conditions and the remainder of the provision in question shall not be affected. If any provision or part provision of the Contract is deemed deleted under this Condition 14.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

14.4 The Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate or declare a trust over or deal in any other manner with any of its obligations under the Contract without first obtaining the Seller’s consent in writing.

14.5 The Buyer shall keep confidential all information belonging to the Seller including without limitation any price lists which are disclosed in connection with any Contract and shall not disclose the same save for the proper performance of the Contract or in accordance with applicable law or with the Seller’s prior written consent.

14.6 Any intellectual property rights created by the Seller prior to entering into any Contract with the Buyer or during the course of performing its obligations under any Contract with the Buyer shall belong to the Seller. Except as expressly stated in these Conditions, nothing in any Contract shall be deemed to have given the Buyer a right or licence to use any of the Sellers’ intellectual property.

14.7 The Contract and any dispute or claim arising out of or in connection with it (whether a contractual or non-contractual matter such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by and construed in accordance with the laws of England and the Buyer agrees to submit to the exclusive jurisdiction of the English Courts.

14.8 The parties to the Contract do not intend any term of the Contract to be enforceable by any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.

14.9 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

14.10 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

14.11 All personal information the Buyer provides to the Seller will be used by the Seller primarily to provide Goods and Product Services to the Buyer. This will include updating and enhancing customer records, analysis to help the Seller manage its business, statutory returns and legal and regulatory compliance. The Seller may make a search of a credit reference agency, which will keep a record of that search. The Seller may also make enquiries about the principal directors of the Buyer. The Seller will monitor and record information relating to the Buyer’s trade credit performance and such records made available to credit reference agencies and other organisations who will share that information with other businesses to assess applications for credit. The Buyer’s information will be kept confidential and secure. The Seller’s use of this information is subject to the Buyer’s instructions and the General Data Protection Regulation (under which the Seller is a Data Controller). Occasionally the Seller would like to send the Buyer information about additional goods and services on offer. If the Buyer does not wish to receive such information, then please write to the Seller at Unit 2B Roman Bank, Bourne, Lincolnshire PE10 9LQ. For further information as to how the Seller protects and respects privacy and ensures the security of personal data, please read the Privacy Notice as published on our website at www.martinlishman.com.

MODERN SLAVERY ACT 2015

Section 54 of the Modern Slavery Act 2015 requires certain organisations to develop a slavery and human trafficking statement each year. Although Martin Lishman Ltd understands and fully recognises the importance of the Modern Slavery Act we do not qualify for having to comply with an annual statement of our Anti-Slavery and Human Trafficking Policy.

However we consider it an important issue and we are committed to upholding these values and ensuring that to the best of our knowledge and ability acts of modern slavery and human trafficking are not present in our own operations or those of our suppliers, contractors or business partners.

As an organisation we are committed to acting ethically and with integrity in all our business relationships and to encourage awareness in our staff and business contacts to report any breach of the Modern Slavery Act 2015 or any concerns to their line manager or a director of the company.

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