Definitions
In these terms and conditions, the “Company” means JMartans Automation Ltd, the “Customer” the person, firm or company to whom this document is addressed, “the Order” means the order placed by the Customer with the Company for the supply of goods and/or services and the “Equipment” means the goods and/or services to be purchased by the Customer under contract in which these terms and conditions are incorporated hereinafter referred to as the “Contract”. The parties are defined as the Company and the Customer.
General
All quotations are made and all orders are accepted subject to the following terms and conditions and no addition thereto or variation therein shall be made unless agreed in writing by the parties.
If JMartans does not constantly demand strict adherence of these conditions, this does not mean that the provisions do not apply or that JMartans would lose the right to require the strict adherence of the provisions at any given moment.
Scope of Contract
The Company shall sell and the Customer will buy the equipment and/or services by the terms and conditions of this contract. The contract contains the entire agreement between the parties relating to the sale of Equipment.
Prices
a. Prices are shown in the quotation.
b. Unless stated otherwise in the quotation, quoted prices are fixed and valid for the period stated in the quotation and maybe revised by the Company if the valid date is exceeded or a price increase has occurred.
c. If a price has been agreed upon and the performance of the agreement by JMartans requires more time or entails more costs than it could reasonably expect, JMartans is entitled to adjust the agreed-upon price in conformity with the work actually carried out.
d. JMartans will notify the Customer without undue delay of a price increase. In such an event and within 14 days of such notice being given, the Customer is entitled to rescind the agreement with the Company, in which case compensation is owed for the work that has already been performed until that time.
5. Quotations
All quotations and proposals made by JMartans are without obligation. A quotation or proposal is no longer valid by operation of law if before the acceptance thereof a change takes place in respect of the conditions under which the quotation or proposal was made, including availability and pricing of the products and services offered.
Unless otherwise specified, the standard validity of a quotation issued by the Company is 90 days from the issue date.
6. Alteration to Specification
Notwithstanding anything to the contrary contained in these terms and conditions, or mutually agreed in writing between the Company and the Customer any changes to the specification requested by the Customer must be detailed in writing and agreed by both parties. The Company may at its discretion issue an amended quotation or price schedule.
7. Delivery
JMartans will endeavour to perform the concluded agreement to the best of its ability and within the set period(s). Stated periods are only target dates. If a period has been agreed upon or set for the completion of certain work or for the delivery of certain items, a failure to meet such a period therefore does not result in a breach under the agreement.
If the Company requires information from the Customer for the performance of the agreement, the processing time does not commence before the Customer has made this information available to JMartans correctly and in its entirety.
8. Payment
Unless otherwise agreed in writing between both parties, the payment in full of the order value is due in respect of any Equipment or service ordered to the Company.
100% payment of the order value is required to be made to the Company by the Customer upon the acknowledgement of receipt of order by the Company to the Customer, whereby the Customer,
- is a new Customer to the Company and has no established trading history with the Company;
- is known to the Company by virtue of a trading history but has not traded with the Company for a period of 12 months or greater;
- the Company considers it reasonable to apply such payment terms;
Payment made against any schedule or specific quotation must be made in accordance with the “Price” listed as per the conditions detailed in point 9.2 of this contract.
The Company’s decision is final in such matters.
9. Account Customers
9.1 Upon written agreement between the Company and the Customer, payments are due 30, 60 or 75 days net after invoice date.
9.2 With the exclusion of the sale of spare parts, for orders to the value of or greater than €5,000 the Company reserves the right to request that stage payments are implemented. The standard schedule being: 40% of the order value (deposit) to be paid upon order. Orders will not be progressed until payment has been received in full; 50% of the order value shall be invoiced (payable net 30 days) upon despatch of products or upon acceptance of a Factory Acceptance Test (FAT). FAT must be completed within a maximum period of 10 working days of readiness for despatch (if the FAT is delayed by the Customer beyond this period then the scheduled 50% payment will be invoiced at the end of this period, payable net 30 days). The outstanding 10% balance shall be invoiced (payable net 30 days) upon despatch of all relevant documentation and commissioning.
These terms may vary at the Company discretion depending upon the scope of the order and shall be agreed in writing.
Neither the legal nor the equitable title in the equipment shall pass to Customer until the Equipment have been paid for in full.
The Company reserves the right to charge interest on overdue payments at a rate of 9% of the total due from the date payment falls due until the date of actual payment.
10. Order Cancellation
Cancellation of an order, or part of an order, can only be made after obtaining the written consent of the managing director of the Company. Furthermore, any cancellation will be subject to a cancellation fee; the amount of which will be dependent on the product or service cancelled but a minimum charge of 10% of the amount cancelled will apply in all cases.
Any deposit paid to the Company upon confirmation of the order will not be returned to the Customer.
Furthermore, the Company reserves the right to consider an order cancelled if the Customer, although has paid a deposit, does not communicate with the Company for a period of one year. In such an event any deposit paid to the Company upon confirmation of the order will not be returned to the Customer.
11. Returns
The Company will not accept the return of Equipment for credit unless prior authorisation has been obtained from the Company for the return of the equipment. Equipment that is accepted for return will be subject to cancellation/restocking charges dependent upon the type of equipment.
The Equipment must be returned to the Company in the same conditions as originally received by the Customer, including the original packaging.
A request to cancel an assignment can only be considered if JMartans is paid an amount of compensation, to be set by JMartans, for the costs already incurred at that time and for the profit lost due to the cancellation. JMartans is entitled at all times to refuse a cancellation request.
The Company’s decision is final in such matters.
12. Rejections
Unless otherwise agreed, equipment rejected by the Customer as not complying with the contract must be so rejected within 7 days of receipt. Any rejection of equipment must be communicated to the Company by the Customer in writing within the specified time frame detailed above.
13. Defects after Delivery/ Warranty
- Projects and Assignment: The Customer shall carry out a thorough inspection of the delivered project within 30 days of signing the commissioning sheet and shall give immediate written notification to the Company of any omissions, defects or faults.
- Sales of spare parts and equipment: The Customer shall carry out a thorough inspection of the delivered product(s) within 7 days of receiving the good(s) and shall give immediate written notification to the Company of any omissions, defects or faults.
The Company warrants that the project or equipment delivered shall accord with the Quotation and related Company specifications.
Defects which, under proper use in accordance with specifications and manufacturer’s instructions, appear in the goods within a period of 12 calendar months (unless otherwise specified in the quotation) after the goods have been delivered and arise solely from faulty design, materials or workmanship, will be treated as “warranty cases” under these terms and conditions. Company will make good, by repair or, at the Company discretion, supply a replacement, provided always that defective parts have been returned to the Company if the Company shall have so required. The repaired part or the replacement will be delivered by the Company carriage paid.
13.1 Equipment delivered by JMartans meets the customary requirements and standards that can reasonably be required of them at the time of delivery and for which they are intended, taking into account normal use in Malta. In the event of use outside Malta the Customer must verify whether or not the delivered items are suitable for its intended use. JMartans does not guarantee that equipment it has delivered can be used outside Malta.
13.2 The guarantee mentioned above is valid for a period of 12 months following the delivery of sold items, unless the parties have agreed otherwise.
13.3 JMartans cannot be held liable in respect of a defect that results from improper use or misuse of the item in question, or use after the expiry date, improper storage or maintenance of the item by the Customer and /or by third parties if, without written permission from JMartans, the Customer or third parties have made changes to the item or have attempted to do so, have attached other items to it that should not be attached to it or if these were converted or adapted in a manner not prescribed. The Customer is also not entitled to the guarantee if the defect was caused by or is the result of circumstances that cannot be influenced by JMartans, including weather conditions.
13.4 The Customer is obliged to inspect the delivered equipment or to have it inspected, as soon as is reasonably possible from the time that the equipment has been made available to it. In doing so, the Customer must – to the extent that this is reasonably possible – investigate if the quality and/or quantity of the delivered equipment corresponds with what was agreed upon and complies with the requirements that the parties agreed on in that respect. Defects must be reported to JMartans in writing within seven days of delivery, at the risk of forfeiting all rights. Defects that have arisen later, only to the extent that these could not be discovered sooner, must immediately, be reported to JMartans in writing. The report must contain a description of the defect that is as detailed as possible, so that JMartans is able to respond adequately. The Customer must provide the Company with the opportunity to investigate a complaint or to have it investigated and to immediately send it to JMartans on request and at its own expense.
13.5 If it has been established that an item or service was delivered or provided defectively and a complaint in that respect was lodged in time JMartans will do the following in respect of the defective item, within a reasonable period of having received the item or – if it cannot reasonably be returned – after a written notice pertaining to the defect: either replace, or ensure repair thereof, or credit the amount charged for the item, all this to be decided by JMartans. In the event of replacement or repair the Customer is obliged to return the defective item to JMartans at its own expense, unless the Company states otherwise. If the Customer is of the opinion that JMartans has not fulfilled its obligations under the agreements, has not fulfilled them correctly or has fulfilled them insufficiently, it is obliged at all times to return to JMartans the items it has repaired and/or delivered, in order to allow it to correctly perform the obligations under the agreement. If the Customer does not comply with this obligation every right in respect of the non-fulfilment lapses. Apart from the stipulations in this document JMartans will not owe compensation.
13.6 If it is established that a complaint is groundless, for example because a defect has arisen due to incompetent use, the costs that have arisen as a result thereof, including the inspection, testing and transport costs, are to be borne by the Customer.
14. Performance and non-performance
14.1 JMartans is not obliged to perform any obligation in respect of the Customer if it is hindered from doing so as a result of a circumstance that cannot be attributed to it, and that it cannot be held accountable for under the law, a legal act or force majeure.
14.2 The term “force majeure”, as used herein shall mean acts of God, strikes, lock-outs or other industrial disturbances, act of public enemy, wars, whether declared or not, blockades, insurrection, riots, epidemics, landslides, earthquakes, storms, lighting. floods, washouts, civil disturbances, explosions, and any other similar unforeseeble events, beyond control of either party and which by the exercise of due diligence neither party is able to overcome.
14.3 While the force majeure remains in effect, JMartans may suspend its obligations. If this period continues for more than two months, each party is entitled to rescind the agreement, without being obliged to pay compensation to the Customer. If at the time of commencement of force majeure JMartans has partly performed its obligations under the agreement or is able to perform them, and the performed or to be performed part has an independent value, JMartans is entitled to send a separate invoice for the performed or to be performed part. The Customer is obliged to pay this invoice as if it were a separate agreement.
15. Retention of title
15.1 The items produced, delivered and to be delivered by JMartans remain the property of JMartans until the Customer has paid the Company all that it owes and will owe JMartans for the produced, delivered or to be delivered items under an agreement with JMartans.
15.2 In the event that the Customer fails to perform its obligations to the Company, or if there is a well-founded fear that the Customer will not do so, JMartans is entitled to take away or have another party take away delivered items subject to a retention of title from the Customer or from third parties keeping the items for the Customer. The Customer must provide JMartans with its full cooperation for this purpose. If the Customer fails to do so, it is liable to pay JMartans an immediately payable fine of 10 per cent of the amount owed by the Customer, for each day that it continues to fail to provide its cooperation to JMartans.
15.3 All items delivered by JMartans to the Customer are delivered subject to an undisclosed pledge for the benefit of JMartans. This undisclosed pledge relates to all that the Customer owes or will owe JMartans.
16. Delivery and risk transfer
16.1 For Customers based within the Maltese islands, delivery by JMartans takes place under the “CPT” Incoterm. This means that JMartans arranges the transport to the Customer but that the delivery and risk transfer takes place at the time at which the items are transferred to the (first) transporter. In the event of a delivery regarding rush orders the delivery costs are to be borne by the Customer.
16.2 EU and Non-EU customers will bear shipping charges. The Company will indicate shipping charges at quotation.
16.3 JMartans chooses the means of transport by which the deliveries referred to in paragraphs 16.1 and 16.2 will be affected. The delivery will take place at the address given in advance by the Customer.
16.4 If the Customer refuses to take delivery or fails to provide information or instructions that are necessary for the delivery, JMartans is entitled to store the items at the risk and expense of the Customer.
17. Intellectual property
17.1 The Customer guarantees that in performing the agreement JMartans will not violate any intellectual property rights of third parties and that carrying out this work is not in any other way unlawful in respect of any third party. The Customer indemnifies JMartans against all claims by third parties in this respect.
17.2 If JMartans suspects that rights of third parties are being violated as described in the first paragraph, it is entitled to either suspend the performance of its obligations under the agreement until it has been proved beyond a doubt that no rights of third parties are being violated, or it can rescind the agreement. In both cases JMartans is not liable for compensation to the Customer and the costs incurred by JMartans are to be borne by the Customer.
17.3 JMartans has the right to use the knowledge it has acquired in performing the agreement for other purposes.
18.Liability
18.1 Under no circumstances is JMartans liable to the Customer for an amount that is higher than the price that the Customer owed JMartans within the scope of the agreement in question.
18.2 JMartans is not liable for damage and/or loss, caused by actions performed by itself, its employees and/or by persons it engaged, unless JMartans itself or its executive employee or employees acted intentionally or acted grossly negligent.
18.3 JMartans is not liable for damage and/or loss that is the result of a defect or defects in items supplied to JMartans, which it supplied on to the Customer, unless JMartans can recover the damage and/or loss from its supplier.
18.4 Under no circumstances is JMartans liable for consequential damage and/or pure financial losses; including consequential losses, lost profits, lost savings and losses due to business interruptions.
18.5 JMartans is not liable for the consequences of the loss of data, software settings and parameters stored on items made available for repair work or inspection. Nor is JMartans liable for the loss of company warranty in respect of items made available for repair work or inspection.
18.6 If the Customer fails to properly perform all that it is obliged to do in respect of JMartans, the Customer is liable for all damage and/or loss, including costs, on the part of JMartans that directly or indirectly resulted from this failure.
19. Applicable law and competent court
19.1 All legal relationships to which JMartans is a party are exclusively governed by the laws of Malta, even if an obligation is partly or completely performed abroad or if the party involved in the legal relationship resides abroad.
19.2 All disputes will be subject to the exclusive jurisdiction of the competent Court or Tribunal in Malta.
