1. GENERAL
a. For the purpose of these terms and conditions (Conditions) set out in this document:
i. Accepted Order means MOVENTI’s written acceptance of the Order which is sent by MOVENTI to the Customer;
ii. Contract means the contract between MOVENTI and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
iii. Customer means the customer who purchases the Goods from MOVENTI pursuant to an Order;
iv. Delivery Note means the document accompanying the Goods in their despatch and delivery from MOVENTI to the Customer;
v. Goods means the goods (or any part of them) set out in the Order;
vi. Invoice means the document despatched from MOVENTI to the Customer requiring payment for the Goods, which will be deemed to include these Conditions;
vii. MOVENTI means Moventi Ltd (company number 10586421); and
viii. Order means the Customer’s order for the Goods as transmitted to MOVENTI in any form bearing the Customer’s name, address and official order number (including the Customer’s purchase order form or the Customer’s written acceptance of MOVENTI’s quotation (as the case may be)).
b. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.
c. The Order shall only be deemed to be accepted when MOVENTI issues an Accepted Order, including an Invoice, at which point the Contract shall come into existence.
d. No conditions or stipulations in or attached to any form of Order to MOVENTI by the Customer which is inconsistent with these Conditions or which adds to or modifies them in any way shall have no effect.
e. No person in the employ of MOVENTI or acting or purporting to act as an agent of MOVENTI has the authority to accept Orders or supply goods on any conditions other than these Conditions in any way whatsoever, except by written agreement between the Customer and a director of MOVENTI.
2. PRICES AND QUOTATIONS
a. The price of Goods shall be the price set out in the Accepted Order, or if no price is provided, the price set out in MOVENTI’s published price list in force at the date of delivery.
b. A quotation for the Goods given by MOVENTI shall not constitute an offer. Subject to clause 2(a), all quotations provided by MOVENTI to a Customer are valid for a period of 30 days unless otherwise agreed in writing in accordance with clause 1(e).
c. All prices quoted are subject to the addition of Value Added Tax at the prevailing rate at the time of despatch.
d. MOVENTI may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
i. any factor beyond MOVENTI’s control (including foreign exchange fluctuations, increases in taxes and duties, and/or increases in labour, materials and other manufacturing costs);
ii. any request by the Customer to change the delivery date(s) or the quantities or types of Goods ordered; or
iii. any delay caused by any instructions of the Customer or failure of the Customer to give MOVENTI adequate or accurate information or instructions.
3. PAYMENT
a. Customers wishing to open credit facilities with MOVENTI may do so by completing the MOVENTI credit application form and furnishing two commercial references and one bankers reference.
b. MOVENTI reserves the right to decline any application for credit facilities without any reason.
c. Credit accounts are subject to settlement by the Customer within 30 days from the end of the month of Invoice.
d. If the Customer fails to make any payment by the respective due date then, without prejudice to any other right or remedy available to MOVENTI, all sums owed to MOVENTI by the Customer on account or otherwise shall immediately become due and payable in full and MOVENTI shall be entitled to:
i. cancel the Contract or suspend any further deliveries to the Customer;
ii. appropriate any payment made by the Customer to such of the Goods (or goods supplied under any other contract between MOVENTI and the Customer) as MOVENTI may consider fit (notwithstanding any purported appropriation by the Customer); and
iii. charge the Customer interest (both before and after any judgment) on the amount unpaid at 8% above the prevailing Bank of England base rate until payment is made (a part of a month being treated as a full month for the purpose of calculating interest).
e. If the Customer does not have a credit facility with MOVENTI payment will be accepted by telegraphic transfer, bankers draft or cleared personal or company cheque. In the case of Customer collection, Goods will only be released when cleared funds are received in MOVENTI’s bank account.
f. The time for payment of the price shall be the essence of the Contract and MOVENTI shall be entitled to claim for the price of the Goods notwithstanding that delivery may not have taken place or that the property in the Goods has not passed to the Customer.
g. Where the Customer in payment of Goods offers a cheque, MOVENTI reserves the right to delay delivery of the Goods pending the clearance of that cheque.
h. MOVENTI does not give any discount for prompt or early payment of invoices or monthly statements.
i. The Customer shall not withhold payment on account of any claim the Customer may have against MOVENTI.
4. RETENTION OF TITLE
a. Before entering any Contract with MOVENTI for the purchase of Goods, the Customer expressly warrants that none of the events listed in clauses 9(a)(ii) to 9(a)(iv) are subsisting in relation to the Customer.
b. Risk in the Goods the subject of any agreement by MOVENTI to sell, which means without limitation any Order, shall pass to the Customer immediately upon delivery in accordance with these Conditions.
c. The Customer shall ensure such Goods against loss and damage naming MOVENTI as loss payee and shall produce to MOVENTI evidence of such insurance upon request.
d. Title to the Goods shall not pass to the Customer until MOVENTI receives payment in full (in cleared funds) for the Goods and any other goods that MOVENTI has supplied to the Customer in respect of which payment has become due, in which case, title to the Goods shall pass at the time of payment of all such sums.
e. Until title to the Goods has passed to the Customer in accordance with these Conditions, the Customer shall:
i. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as MOVENTI’s property;
ii. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
iii. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
iv. notify MOVENTI immediately if it becomes subject to any of the events listed in clauses 9(a)(ii) to 9(a)(iv); and
v. give MOVENTI such information as MOVENTI may reasonably require from time to time relating to the Goods and the ongoing financial position of the Customer.
f. At any time before title to the Goods passes to the Customer, MOVENTI may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5. DELIVERY
a. MOVENTI will charge:
i. carriage on deliveries of Goods, including any costs arising from the Customer changing its delivery instructions, requirements or specifications;
ii. a fixed charge to be confirmed by MOVENTI in respect of any tailboard delivery to the Customer’s warehouse facility in mainland England or Wales to the extent that the value of the Goods is £1,000.00 or less;
iii. a charge to be provided on request in respect of any tailboard delivery to the Customer’s specified installation site in England or Wales or elsewhere;
iv. a charge to be provided on request in respect of any delivery and offload service to either the Customer’s warehouse facility or the Customer’s specified installation site, in each case, in England or Wales or elsewhere;
v. a charge to be provided on request in respect of any delivery, offload and installation service to the Customer’s specified installation site in England or Wales or elsewhere.
b. Delivery dates are given in good faith by MOVENTI to indicate estimated delivery times and are approximate only and shall not amount to any contractual obligation on MOVENTI to deliver at the times stated in any communication by and on behalf of MOVENTI. The time of delivery is not of the essence.
c. Where Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure or delay by MOVENTI to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments, shall not entitle the Customer to cancel any other instalment or to treat the Contract as a whole repudiated.
d. No liability for loss of profits, indirect or consequential loss or damage arising from delay in delivery of the Goods by MOVENTI howsoever caused will be accepted by MOVENTI.
e. MOVENTI shall provide a Delivery Note with each delivery of the Goods.
f. MOVENTI shall deliver the Goods at any time after MOVENTI notifies the Customer that the Goods are ready for delivery to the location set out in the Delivery Note or such other location as the parties may agree (Delivery Location).
g. Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
h. If, within two days of MOVENTI notifying the Customer that the Goods are ready for delivery, the Customer fails to take or accept delivery of the Goods or otherwise requests MOVENTI to make delivery on a later date, then, unless otherwise agreed in writing by MOVENTI:
i. delivery of the Goods shall be deemed to have been completed at 9.00 am on the second day after the day on which MOVENTI notified the Customer that the Goods were ready; and
ii. MOVENTI shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
i. If ten days after the day on which MOVENTI notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, MOVENTI may, in its absolute discretion, resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
j. The Customer shall:
i. check all Goods delivered by or on behalf of MOVENTI and sign the Delivery Note for the Goods at the time of delivery;
ii. subject to clause 6(c), mark any discrepancies between the Goods ordered and Goods delivered and mark any damage to Goods and inform MOVENTI (at [email protected]) within five days of the delivery; and
iii. submit any claims for damaged Goods to MOVENTI in accordance with 5(j)(i) and 5(j)(ii) above, each claim submitted to MOVENTI (at [email protected]) must include full particulars of the Order, the Delivery Note and full details of the claim, including photo evidence. Claims will not be accepted by MOVENTI if they are not submitted within five days of delivery. Submission of a claim within five days does not necessarily mean that MOVENTI will accept liability in relation to such claim. A Delivery Note signed ‘unexamined’ or ‘unchecked’ is not sufficient to uphold a claim.
k. MOVENTI shall not be liable for any loss resulting from the Customer’s failure to comply with the requirements, conditions or regulations of the Post Office, or an independent carrier appointed to transport the Goods.
6. WARRANTY AND LIMITATION OF LIABILITY
a. Except as provided elsewhere in these Conditions, MOVENTI warrants that on delivery, and for a period of five years from the date of delivery, the Goods shall be free from material defects in design, material and workmanship provided always that:
i. such defect would not have been apparent on inspection;
ii. notice has been received by MOVENTI of such defect within five days of the date by which the Customer could first reasonably have ascertained that such defects existed; and
iii. the Customer or end-user has not dealt with the Goods in such a way as to render their condition worse than when they were delivered.
b. Such warranty excludes any and all loss of profits, indirect or consequential loss howsoever caused and is limited to the replacement of the defective Goods.
c. All descriptions, weights and dimensions given by MOVENTI are given in good faith and are approximate only; no responsibility is taken by MOVENTI for their accuracy and the Customer shall not have any right to seek to make a claim for any discrepancy in accordance with clause 5 or seek to return Goods in accordance with clause 8 to the extent that the actual descriptions, weights or dimensions of any Goods differ from those given by MOVENTI or the actual descriptions, weights or dimensions of any Goods are not appropriate for the Customer’s purpose.
d. Variations of colour, finish, materials and other aspects of appearance may occur in respect of the Goods from time to time and no liability is accepted by MOVENTI in respect thereof.
e. Subject to clause 6(f), if:
i. the Customer gives notice in writing to MOVENTI in accordance with clause 6(a)(ii);
ii. MOVENTI is given a reasonable opportunity of examining such Goods; and
iii. the Customer (if asked to do so by MOVENTI) returns such Goods to MOVENTI’s place of business at the Customer’s cost,
MOVENTI shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
f. MOVENTI shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6(a) if:
i. the Customer makes any further use of such Goods after giving notice in accordance with clause 6(e);
ii. the defect arises because the Customer failed to follow MOVENTI’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
iii. the defect arises as a result of MOVENTI following any drawing, design or specification supplied by the Customer;
iv. the Customer alters or repairs such Goods without the written consent of MOVENTI;
v. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
vi. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
g. MOVENTI does not accept liability for failure to comply with any applicable law or regulations in respect of Goods supplied by MOVENTI or for loss of profits, indirect or consequential loss or damage arising from such Goods.
h. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
i. Except as provided in this clause 6, MOVENTI shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6(a).
j. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
i. death or personal injury caused by negligence;
ii. fraud or fraudulent misrepresentation.
7. ORDERS
a. Subject to clause 1(c), where there has been an Order, MOVENTI will only supply Goods to bona fide commercial customers. The proper control, authorisation and placing of Orders is the responsibility of the Customer. MOVENTI will not accept any liability for either the incorrect use or abuse of Orders.
b. MOVENTI reserves the right, in its absolute discretion, at any time and without explanation to:
i. refuse to accept an Order;
ii. cancel an Order;
iii. suspend deliveries against an Order whether or not an account is in arrears regarding payment;
iv. refuse a Customer’s request to cancel an Order;
v. cancel unexecuted instalments of an Order.
c. No variation of an Order will be recognised unless otherwise agreed by MOVENTI in writing.
d. Written confirmation from a Customer of any Order made by telephone must be received by MOVENTI clearly marked as confirmation of such Order. No Orders will be actioned by MOVENTI until such written confirmation has been received. MOVENTI will not be responsible for duplication of any Order by the Customer.
e. MOVENTI retains the right to apply a charge equal to the full Contract price where the Customer cancels an Order.
f. Customers are responsible for checking the accuracy of all Accepted Orders. MOVENTI will acknowledge all Orders in writing by providing an Accepted Order. No claims for discrepancies between the items and quantities stated in an Order and those supplied will be accepted where Goods supplied are in keeping with those set out in the Accepted Order. Customers are required to check the Accepted Order and advise of discrepancies within 12 working hours of receipt.
g. Once MOVENTI has provided an Accepted Order, the Customer will, unless otherwise agreed by MOVENTI in writing, be liable to make payment in respect of the value set out in the relevant Invoice notwithstanding the Customer requesting a variation of that Accepted Order.
8. RETURNS
Except as provided elsewhere in these Conditions, Goods are not returnable unless a return is agreed in writing by MOVENTI prior to any return, in which case, the following terms will apply:
a. MOVENTI will only give an account credit to the Customer in respect of any Goods returned in accordance with this clause 8.
b. Goods returned for credit by the Customer must be accompanied by an advice note quoting the relevant Invoice number on which the Goods were originally supplied and the reason for return.
c. Goods returned to MOVENTI for any reason other than in accordance with clause 6(e) will incur a handling and restocking charge of 33% of the returned Goods’ value.
d. To the extent that any Goods that are returned are damaged, MOVENTI will reduce the amount of the credit to reflect the cost of that damage.
e. No liability will be accepted by MOVENTI for loss or damage to Goods returned to MOVENTI.
f. If there is a discrepancy between the Goods advised as returned and those actually received, MOVENTI will only credit the Goods actually received that are those that have been agreed for return.
9. TERMINATION
a. Without limiting its other rights or remedies, MOVENTI may terminate this Contract with immediate effect by giving written notice to the Customer if:
i. the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of the Customer being notified in writing to do so;
ii. the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
iii. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
iv. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
b. Without limiting its other rights or remedies, MOVENTI may suspend provision of the Goods under the Contract or any other contract between the Customer and MOVENTI if the Customer becomes subject to any of the events listed in clauses 9(a)(ii) to 9(a)(iv), or MOVENTI reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
c. Without limiting its other rights or remedies, MOVENTI may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
d. On termination of the Contract for any reason the Customer shall immediately pay to MOVENTI all of MOVENTI’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, MOVENTI shall submit an invoice, which shall be payable by the Customer immediately on receipt.
e. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
f. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10. INTELLECTUAL PROPERTY
The copyright and all other intellectual property rights in all Goods, lists, descriptions, articles, drawings and other information produced by MOVENTI shall remain the property of MOVENTI at all times.
11. CONFIDENTIALITY
MOVENTI and the Customer each agree to keep confidential all information relating to the business, policies, accounts, activities of any nature, of the other where such knowledge is received in the course of transactions between the parties. Neither party shall divulge to any third party any information whatsoever relating to the other party, save only where such information is required by an employee or agent for the purpose of carrying out the obligations under these Conditions.
12. DATA PROTECTION
MOVENTI will monitor and record information relating to the Customer’s trade credit performance and such records will be made available to other organisations to assess applications for credit in accordance with the Data Protection Act 2018 and the General Data Protection Regulation.
13. LAW AND JURISDICTION
a. These Conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
b. Each of MOVENTI and the Customer irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.