Standard Trading Conditions of Momart Limited
CLIENT NOTICE
If you are a Consumer (as defined below), some of the provisions in these Conditions do not apply to you, and the Consumer terms that apply give you additional rights. The Conditions make clear where this is the case. In particular, please read and ensure you understand Condition 20, which sets out some important additional rights that apply to Consumers.
If you are a Consumer, by entering into a Contract with us, you understand and agree that given the nature of our Services, we are only able to provide your Estimate based on the information we receive from you at the outset and therefore you may be subject to additional charges in respect of certain aspects of our Services. We have marked under what circumstances additional charges may be incurred in the Conditions below. please ensure you are satisfied with this before entering into a Contract with us.
1. DEFINITIONS
In these Standard Trading Conditions (these “Conditions”):
“Consignee” means any organisation or person to whom you require us to deliver the Goods as part of the Services.
“Consumer” has the same meaning as ‘consumer’ in the Consumer Rights Act 2015 i.e. an individual acting for purposes that are wholly or mainly outside that individual’s trade, business craft or profession.
“Contract” means the Estimate and these Conditions.
“Contract Start Date” shall be:
(i) the date of your written acceptance of our Estimate, or
(ii) the date of our receipt of the fees specified in our Estimate,
whichever is the earlier.
“Estimate” means the document containing the estimated charges, the Services to be provided by us and any special terms we offer in respect of these Services.
“Force Majeure Event” means any of the circumstances listed in Condition 15 (g).
“Goods” means the property or goods, including all individual items or components thereof, including packaging, in respect of which we are to provide the Services, as more specifically set out in the Estimate.
“Owner(s)” means the person or persons who is / are the legal and / or beneficial owner(s) of the Goods.
“Services” means all services we agree to provide to you, including but not limited to case making, packing, handling, warehousing, storage, transportation and import or export services, as set out in an Estimate.
“Site” means the place of collection or delivery or installation or de-installation of Goods, as specified in an Estimate.
“we”/“us”/”our” means Momart Limited, a company incorporated in England with company registration number 01073437, whose registered address is Exchange Tower, 9th Floor, 1 Harbour Exchange Square, London E14 9GE, or any associated company, including our employees, directors, other staff and agents.
“Working Days” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“you” means the individual, company or entity who contracts with us for the Services.
2. BASIS OF THE CONTRACT
The Services are provided in accordance with the Contract. All Estimates are subject to these Conditions.
3. ESTIMATES
(a) For us to provide you with an Estimate, we request that you contact us or fill out our Contact Form using our contact details available here. Each Estimate provided by us is based on information provided by you, and charges are based on our then current charges, the information supplied by you and on prevailing rates of expenses such as freight charges, exchange rates, tax rates and administration costs and any other applicable charges.
(b) All Estimates shall be valid for your acceptance for a period of 3 months from the date the Estimate was provided (“Validity Period”) after which, if the Contract Start Date has not been agreed OR an invoice for the Services has not been paid, we reserve the right to increase the price in the Estimate and / or vary the dates due to resource availability or any other reasonable cause. Unless you are a Consumer, we reserve the right at any time prior to the Contract Start Date to revise or withdraw the Estimates.
(c) All Estimates shall exclude any import duties and taxes, value added tax, GST, Merchandise Processing Fees (MPF), bond fees or any other charges that may be imposed by the importing country. We may agree to make such payments on your behalf. If we do so, we shall add these charges to your invoice.
(d) Estimates are given in good faith and based on the information available to us at the point at which you have requested an Estimate. Additionally, if actual details of the Services required differ from the information provided to us at the time the Estimate is requested, we reserve the right to amend our final charges accordingly.
4. OUR PERFORMANCE OF SERVICES
(a) All our Services shall be provided during Business Hours on a Working Day. Any Services provided outside Business Hours or on a non-working day shall be subject to our overtime charges.
(b) We may engage sub-contractors and/or other agents, including (without limitation) local customs clearance agents, specialist manufacturers of packing cases and other equipment, airlines and shipping lines to perform the Services or any part thereof. All such sub-contractors and agents shall have the benefit of these Conditions and shall have no greater liability to you than we do.
(c) We shall use our expertise in determining the means, facilities, routes and procedures (“Specifications”) by which we perform the Services unless we agree that you are responsible for providing us with the Specifications. If you stipulate the Specifications to be followed, you shall indemnify us fully for any loss or damage or other consequences resulting from our compliance or attempts to comply with such Specifications.
(d) We reserve the right to amend the Specifications, whether stipulated by us or you, if it is necessary to comply with any applicable law or regulatory requirement, and we shall notify you in any such event.
(e) You hereby warrant that that any information you have provided to us in connection with the Services is accurate and you undertake to promptly provide us with any further information that we reasonably request or require in connection with the Services. You acknowledge that information provided by you will influence our decision as to whether and how we provide the Services and we shall not be liable under any circumstances for any act or omission based on the information you provide.
(f) We may refuse to deliver up the Goods to any person (i) unless you have authorised us in writing to deliver the Goods up to that person; and (ii) if you have not paid us all charges that are due prior to delivery.
(g) We are entitled to receive and retain all brokerage, commission, allowances and other remunerations from shipping and forwarding agents or freight forwarders and/or carriers and/or insurance brokers.
(h) We will use commercially reasonable endeavours to comply with any applicable industry specific rules, regulations and standards when providing the Services.
5. ART TRANSPORT AND INSTALLATION / DE-INSTALLATION
(a) This Condition 5 applies if the Services include delivery or collection or installation or de-installation of the Goods.
(b) We shall use reasonable endeavours to achieve any timescales specified in the Estimates for collection or delivery Services. If you require our collection or delivery Services to be provided at specified times, additional charges may apply.
(c) If we are required to make an overnight stop whilst providing the Services and we are required to park the vehicle in a secured area (e.g. museum yard, agent’s premises or other secured and alarmed premises), additional charges may apply.
(d) If we incur any parking dispensation charges while providing the Services, we will add such charges to your invoice.
(e) For the purposes of the Contract, collection takes place when the Goods are placed at our disposal at the place of collection, and delivery takes place when we place the Goods at your or your Consignee’s disposal at the Site specified in the Estimate.
(f) You must ensure that:
(i) the Goods and the Site match any description that you have provided to us, including (without limitation) as regards their dimensions;
(ii) we are provided with access to the Site at the relevant times;
(iii) the Site is in a fit condition and able to accommodate the Goods and any equipment and personnel that may reasonably be required to load or unload the Goods or carry out the installation or de-installation of the Goods;
(iv) in the case of collection, unless packing is agreed as part of the Services, the Goods are packed and ready for collection at the specified time;
(v) in the case of a delivery, that the person authorised by you and notified to us in writing to take delivery is present at the Site at the specified time;
(vi) in the case of installation Services, that the Goods are ready for installation at the Site at the relevant time, unless we have also agreed to deliver the Goods to the Site immediately prior to installation.
(vii) unless we expressly agree to assume responsibility for health and safety at the Site, you agree to ensure that the Site is (so far as reasonably practicable) free from risks to the health and safety of our staff and contractors.
6. POSTPONEMENT OR CANCELLATION BY YOU
(a) You may request to postpone the Services by notifying us using the contact details in the Estimate, provided that you notify us at least 7 days prior to the scheduled date for those Services. You must notify us of your preferred postponed date and time and we will either accept these or use commercially reasonable endeavours to mutually agree upon another Service date.
(b) If you do not fulfil your obligations under Condition 5(f) and as a result we are unable to provide the Services within the relevant timescales, we may store the Goods (if we already hold them) and use commercially reasonable endeavours to mutually agree an alternative date and time for completing the Services.
(c) Unless you are a Consumer, you may cancel our Services by notifying us using the contact details in the Estimate. If you notify us of a cancellation:
(i) more than seven days before the Contract Start Date, we shall charge you in accordance with clause 6(d); or
(ii) seven days or fewer than seven days before the Contract Start Date for those Services, you shall pay us the full amount set out in the Estimate in respect of those Services.
(d) For postponed or cancelled Services under Condition 6(a) - 6(c)(i), you shall pay us the following in liquidated damages (which you agree is reasonable in the circumstances):
(i) a fee equivalent to any costs we have incurred up to the alternative agreed date and time for providing the Services and the value of any resources that we had allocated to provide the relevant Services at the agreed date and time and which we were unable to re-allocate to an alternative job;
(ii) a storage fee calculated at our then current weekly rate for each week or part of a week during which we store the Goods; and
(iii) an additional fee for completing the Services at the alternative date and time we agree with you. These fees will be calculated at our then current rates.
(e) Where you wish to amend the scope of the Services and/or request additional services from us, you shall notify us in writing of the change and/or additional services requested along with all necessary information (“Change Request”). We shall, within 7 Working Days of receipt of a Change Request, respond to you, notifying you as to what additional charges (if any) you would incur. You shall thereafter notify us in writing within 3 Working Days as to whether you wish to proceed with the Change Request. If you do wish to proceed, we will document the changes in a new or amended Estimate that shall be part of this Contract.
(f) If a delay is caused by you or the Consignee, we may, at our sole discretion, allow you to store the Goods at our warehouse. However, we shall be entitled to charge you additionally for storage Services and costs incurred.
7. CUSTOMS
If we are instructed by you to make any customs declaration on your behalf:
(i) you authorise us to act as your agent on your behalf in your name as your direct representative;
(ii) you authorise us to delegate tasks to a sub-agent to act on your behalf in your name as your direct representative;
(iii) we shall only act as your direct representative, except where the Customs Freight Simplified Procedures administered by HM Revenue and Customs are used in which case we shall act as your indirect representative;
(iv) we (or the sub-agent) shall complete the declaration using the information provided by you and in accordance with your instructions and you warrant that such information and instructions are accurate and complete;
(v) if we or the sub-agent incur any liability to pay any customs, taxes, or duties in connection with the Goods, you shall pay to us as a debt the amount of such liability immediately upon receipt of invoice for the relevant amount.
8. AIRFREIGHT
(a) Any cost estimates requiring the import or export of Goods by airfreight, are based on the borrower / lender / third party service provider having ‘Known Consignor’ status. If the borrower / lender / third party service provider does not hold such status or loses such status after we have provided an Estimate for the Services but before airfreight Services are to be provided and if additional charges for security screening are applicable, such additional charges shall be payable by you.
(b) UK airports allow for a staff member that has received security clearance from us to act as an airport supervisor and to be present in the cargo shed to supervise the airline handlers loading/unloading the aircraft ULD ('pallet') to ensure the safe handling of cases within the cargo shed (“Supervision Services”). Charges for Supervision Services are not included in the cost estimate for airfreight Services.
(c) UK airports allow for a staff member that has received security clearance from us to act as an airport supervisor on the tarmac at the aircraft side to supervise the safe loading/unloading the aircraft ULD ('pallet') onto/from the aircraft (“Tarmac Supervision Services”). Charges for Tarmac Supervision Services are not included in the cost estimate for airfreight Services.
(d) Cost estimates for the supervision Services set out in Conditions 8 (b) and (c) will be separately set out in our Estimate and are based on 5.5 hours for exports and 4 hours for imports. Each additional hour shall be charged pro-rata and overtime charges shall apply where appropriate.
(e) If the relevant party which is a ‘Known Consignor’ is unable to send a completed and signed security declaration to us within the time period requested, and such declaration cannot be completed on collection of the Goods, then additional courier charges may apply.
(f) Where airfreight for Goods is sponsored by an airfreight provider or any other third party, we shall be entitled to charge a 10% intervention fee based on the standard IATA rate for the units provided.
9. STORAGE
(a) This Condition 9 shall only apply if the Services include storing Goods.
(b) Where any Goods being delivered by us transit through any of our warehouses or workshops for onward delivery, we will use commercially reasonable endeavours to ensure there is no delay in delivering the Goods to the destination.
(c) Where delivery dates have not been pre-agreed, once you require us to deliver up the Goods you must provide us with at least 3 Working Days’ prior notice. Unless expressly agreed otherwise, we shall deliver up the Goods by placing them at the disposal of Consignee at the agreed location, date and time.
(d) Payment for storage Services shall be made quarterly in advance. We will issue our invoice for storage on or before the first day of each quarter and payment will be due within 30 days of receipt of an invoice.
(e) Where storage is unplanned and therefore not purchased under an Estimate, or where storage invoices have been outstanding for over 30 days, we may send you written notice, at least 30 days prior to the end of a quarter to notify you that we require you to remove the Goods from our storage facility(ies). You shall pay all outstanding sums due to us in respect of Services provided up to and including the date of collection, and effect removal of the Goods by the end of the relevant quarter. If you do not effect removal by the end of the quarter, we will continue to charge you in accordance with Condition 9(d).
(f) Our charges for storage are subject to annual review and the revised pricing shall be effective from 1st April each year. We will provide you with no less than 60 days’ written notice of the revised storage charges. If you do not wish to accept the revised storage charges, you may provide us with at least 30 days’ written notice to terminate the storage Services before the revised storage charges apply.
10. CASE MAKING AND PACKING
(a) Cases, travel frames and all bespoke packing are made at our own case making and packing workshop to the required specification based on information provided by you.
(b) Where we have not been provided with the necessary information and/or adequate information in respect of a piece of artwork, we will base our case making and packing cost estimate on a similar piece of artwork created by the same or a similar artist. Where no other frame size is given for 2D objects, we will add 10cm to each dimension for the purpose of providing you with a cost estimate. You must, however, provide us with the information required before we can provide you with the Services and we shall not be responsible for any delays resulting from your failure to provide the information within the timeframe we specify. Charges for the difference between the cost estimate and the actual cost, if any, shall be payable by you within 14 days of receipt of invoice.
(c) Where you require us to move Goods that are already packed, you warrant that the Goods are suitably packed for the relevant manner in which we are contracted to transport them. Where Goods are packed for import or export, you must ensure that cases are appropriately stamped/certified to meet ISPM15 Regulations and/or any other applicable regulations in other jurisdictions. We may refuse to provide our Services and charge you for any costs we have already incurred where you have failed to comply with this Condition 10 (c).
11. INSURANCE OF THE GOODS
(a) We are not responsible for insuring the Goods. Upon your request, we may arrange insurance for the Goods, subject to Condition 11 (c), and invoice you accordingly.
(b) If we do not agree to arrange insurance for the Goods, you must:
(i) ensure that the Goods are adequately insured, with a reputable insurer, against any loss or damage occurring to the Goods whilst in our custody or control (including loss or damage arising out of or in connection with our negligence);
(ii) ensure that our interest as co-assured is noted in the insurance policy and provide us with a copy of the relevant insurance certificate(s) showing this; and
(iii) you must not cause the insurance policy to be invalidated or the amount of any insurance payment to be reduced.
(c) If we expressly agree to arrange insurance for the Goods then:
(i) that insurance will be subject to the exceptions and conditions of the policies of the insurers accepting the risk;
(ii) we shall not be under any obligation to effect separate insurance on the Goods, but may declare them on any open or general policy held by us;
(iii) insurance of the Goods arranged by us may note our interest as a co-assured;
(iv) in arranging any insurance, we act solely as your agent and will use our reasonable endeavours to arrange such insurance; and
(v) any insurance effected will be based on information (including as to the value of the Goods) supplied by or on behalf of you. We accept no liability for any consequences of inaccurate or incomplete information supplied to us.
(d) Where we agree to arrange insurance for the Goods, our fees for doing so will be as set out in the Estimate. We may also charge you additional fees for administering the insurance policy upon your request, for instance if you ask us to arrange a new policy, make a mid-term adjustment, cancel or renew the policy, or arrange for replacement or duplicate documents to be provided for you. We will confirm these fees to you in writing and ask you to confirm whether you want us to incur any administrative costs. You acknowledge that the insurer that issues the policy may pay us part of the insurance premium as a commission or rebate and we shall be entitled to retain such commission or rebate.
12. BREXIT AND OTHER IMPORT / EXPORT IMPLICATIONS
(a) We may be subject to additional charges as a result of Brexit where your Goods are being transported through Europe. As part of the Estimate, we will notify you of any applicable charges in this respect (to the extent these are known to us), including details of our waiting time charges.
(b) Where export licences are required for the Goods, you shall be responsible for notifying us so that we can factor in the necessary time periods which may affect our provision of the Services. We may, at your request, provide you with advice on obtaining the appropriate export licences which shall be additionally chargeable.
13. YOUR WARRANTIES
At the time of concluding the Contract you warrant as follows and that you will advise us immediately of a change in circumstances which affects your ability to provide these warranties or the validity of these warranties:
(i) the Goods including all individual items have been fully and accurately listed by you and you shall maintain and update that list at all times and provide us with that list on request;
(ii) full and accurate written disclosure and instructions have been given to us of all matters relating to the Goods;
(iii) the Goods are not of such a type or in such condition as to cause damage or injury to any person or other property whatsoever;
(iv) unless packing is agreed as part of the Services, the Goods are properly and securely packed, labelled and addressed and able to withstand common incidents during transit of the Services;
(v) subject to Condition 5 (f) you will make full payment for and are liable in respect of all consular charges, duties, customs charges, taxes, imports, levies, dues, deposits, outlays of any kind or any other charges in connection with the Goods and the Services and you shall ensure that you meet all of your legal obligations. You must promptly provide us with the necessary information and documentation evidencing your compliance with this Condition 13 (v) and we shall not be liable for any delays caused by your failure to provide such information and documentation as soon as reasonably practicable after we have requested it;
(vi) if you are not the Owner(s):
(i) you warrant and represent that you are acting as the agent of the Owner(s), and are authorised to enter into the Contract on behalf of the Owner(s);
(ii) you enter into the Contract on your own behalf and as agent on behalf of the Owner(s);
(iii) any warranties or representations expressed to be given by you in the Contract are given by you on your own behalf and as agent on behalf of the Owner(s);
(iv) you and the Owner(s) shall be jointly and severally liable for the warranties and representations you give and for the performance of your obligations under the Contract;
(v) if you are not a Consumer then any provisions of these Conditions that are expressed to apply if you are not a Consumer shall apply to you, regardless of whether the Owner(s) is/are a Consumer;
(vii) you warrant that you have not entered into the Contract in reliance on, and shall have no remedy in respect of, any representation or statement that is not expressly set out in these Conditions or the Estimate; and
(viii) you acknowledge and agree that in no circumstances are we to be deemed to be a common carrier.
14. PAYMENT, LIEN AND SALE
(a) Where we require payment in advance and/or in instalments for the provision of certain Services, we will notify you of this when we provide you with an Estimate. Unless otherwise agreed in an Estimate, you agree to pay our charges within 14 days of receipt of an invoice.
(b) Where we make any payments on your behalf, we will add such disbursements to your next invoice which shall be payable in accordance with Condition 14 (a).
(c) The charges for the Services will be estimated without value added tax or other sales taxes which shall be added at the prevailing rate where applicable.
(d) If any Services we have agreed to provide take longer than anticipated or require more resources than allocated due to reasons attributable to you or information not provided prior to the Estimate, we shall be entitled to charge you for any additional costs incurred by us.
(e) If we agree, at our sole discretion, to invoice a Consignee or a third party on your behalf for any part of the charges, you shall remain responsible for and shall make payment immediately upon notification for all such amounts, to the extent that they are not otherwise paid by the Consignee or third party.
(f) If any sums due to us are not paid upon the due date, you shall pay interest on any overdue amount at 4% per annum. The interest shall accrue on a daily basis from the payment due date until actual payment of the overdue amount, whether before or after judgment.
(g) We shall have a lien on the Goods for all debts whatsoever due from you. If any debts are not satisfied within 30 days of falling due, you agree that we may at our absolute discretion open, examine and sell the Goods.
(h) In addition to Condition 14(g), we may at our absolute discretion open, examine and sell the Goods where:
(i) the Goods are not removed by you in accordance with the provisions of Condition 9(e); or
(ii) transportation Services cannot be completed either because the Goods are insufficiently packed, labelled or addressed or because they are not collected or accepted by the Consignee for reasons beyond our reasonable control; or
(iii) the Services include transportation of perishable Goods which are not taken up by the Consignee immediately.
(i) Where we sell the Goods under Conditions 14 (g) and 14 (h), we may apply the proceeds of sale towards of all debts due by you including the costs incidental to the lien and sale. After making these deductions we shall pay the balance of the sale proceeds to you without interest. Any outstanding debts still not recovered shall remain payable by you. Save for accounting without interest to you for any balance, we shall, upon sale, be released from all liabilities whatsoever in relation to the Goods and the Services.
(j) We may at our discretion set off, against any charges which might otherwise be due to you, any sums due to us from you in relation to the Contract or any other Contract between you and us.
(k) You shall pay any sums due to us without deduction, set-off, or counter-claim.
15. OUR LIABILITY
(a) This Condition 15 sets out the extent of our liability to you and (if you are not the Owner(s)) to the Owner(s) arising out of or in connection with the Contract, whether such liability arises in tort (including negligence and misrepresentation), contract or in any other way.
(b) Nothing in the Contract shall exclude or limit our liability for death or personal injury caused by our negligence.
(c) We shall not be liable for any loss or damage to the extent that such loss or damage is covered by a policy of insurance effected by you or by us on your behalf or loss or damage that would have been covered if you had complied with Condition 11(b). For the avoidance of doubt, we shall also not be liable for any losses arising by reason of any insurance excess or deductible or any shortfall in the amounts payable under such policy.
(d) We shall not be liable for any loss of profits, business interruption, loss of contracts, or loss of revenue, or any indirect or consequential loss of any kind whatsoever and however arising.
(e) OUR LIABILITY WHETHER IN CONTRACT, BAILMENT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE HOWSOEVER ARISING SHALL BE LIMITED TO THE FOLLOWING MAXIMUM LIMITS:
(I) IN THE EVENT OF LOSS OF, DAMAGE TO, DELAYED DELIVERY OF OR ANY OTHER LOSS OR DAMAGE ARISING FROM ANY ONE INDIVIDUAL ITEM, A MAXIMUM OF £3,000 IN RESPECT OF ALL SUCH LOSS OR DAMAGE; OR
(II) IN THE EVENT OF LOSS OF, DAMAGE TO, DELAYED DELIVERY OF OR ANY OTHER LOSS OR DAMAGE ARISING FROM MORE THAN ONE INDIVIDUAL ITEM, A TOTAL MAXIMUM OF £6,000 IN RESPECT OF ALL SUCH LOSS OR DAMAGE WHERE SUCH LOSS, DAMAGE OR DELAYED DELIVERY WAS CAUSED OR AROSE OUT OF THE SAME (OR SUBSTANTIALLY THE SAME) EVENT OR OCCURRENCE; OR
(III) IF YOU ARE A CONSUMER, THE ABOVE LIMITS WILL APPLY UNLESS THE AMOUNT OF THE FEES PAID FOR THE SERVICES IS MORE THAN THE LIMIT UNDER CONDITIONS 15 (e)(I) OR (II) IN WHICH CASE THE HIGHER AMOUNT SHALL BE THE LIMIT.
(f) For the avoidance of doubt, this limit is applicable to all Goods delivered to us by you or on your behalf and/or in respect of which we are providing Services, irrespective of whether such Goods were delivered to us pursuant to more than one Contract.
(g) If you are a Consumer, this Condition 15 (g) does not apply to you. You agree that in no circumstances shall we be liable for any loss, damage or delay arising from:
(i) act of God, flood, tempest or other adverse weather conditions;
(ii) war whether declared or not, insurrection, civil disturbances, sabotage or terrorism;
(iii) compliance with any acts, regulations, bye laws, orders or restrictions of government or authority (public or local) or any capture, seizure, arrest, restraint, detainment or quarantine restrictions imposed by any government or such authority;
(iv) theft (unless involving complicity by ourselves or our staff acting in the course of employment);
(v) fire, whether started deliberately or accidentally (unless caused deliberately by ourselves or that of our staff whilst acting in the course of employment);
(vi) strikes, lockouts, or other industrial action (including those of our own staff, our suppliers, sub-contractors or agents);
(vii) any inherent or latent defect affecting the quality of the Goods or natural deterioration or damage arising from any inadequate packing of the Goods (where packing was not part of the Services);
(viii) moth, insects, vermin;
(ix) leakage from any container;
(x) changes in atmospheric conditions or humidity levels;
(xi) contamination by radioactivity;
(xii) attempts by us or our agents to save life or property in the event of an emergency (such as under the principle known as “General Average”); or
(xiii) non-performance of our suppliers or agents.
(h) Our liability to you howsoever arising shall under no circumstances exceed the market value of the Goods at the place and at the time we received them.
(i) In no circumstances shall we be liable for any loss or damage arising from any advice or representations provided by us in connection with this Contract and/or the Services, save insofar as we have expressly accepted liability for the same in writing. Nothing in this Contract excludes our liability for fraud or fraudulent misrepresentation or misstatement.
(j) You shall have no claim for innocent or negligent misrepresentation or misstatement in relation to any statement in this Contract.
(k) Each party agrees that the liability provisions above are reasonable under the circumstances. Note Condition 11 with regard to insurance that you must purchase.
16. NOTIFYING US OF A CLAIM
(a) This Condition 16 does not apply if you are a Consumer.
(b) Any claim by you or the Owner against us in respect of the Goods or Services (a “Claim”) must be made in writing and notified to us within 10 Working Days of:
(i) the date on which the Services were delivered or ought to have been delivered; or
(ii) if the date for Service provision is not yet due, the date on which you or your agent first become aware of the event or occurrence alleged to give rise to any cause of action.
(c) Without prejudice to the application of any other Condition, we shall in any event be discharged of all liabilities, however they arise, unless proceedings are brought against us in accordance with Condition 24 within 12 months from the later of:
(i) the date of the event or occurrence alleged to give rise to any cause of action, and
(ii) the date, on which you (including your staff or agents) first become aware or ought to have become aware of the event in question.
Nothing in this Condition shall extend any period of limitation provided by law.
17. INDEMNITY
(a) If you are not a Consumer you agree to indemnify in full and hold us harmless against all loss, damage, costs (including legal costs) and claims (including third party claims) that we may incur arising out of or in connection with any breach by you, the Owner or their or your staff, employees or agents of your warranties, these Conditions and/or arising out of or in connection with our compliance with your instructions. This indemnity is without prejudice to any other rights and remedies we may have.
(b) If you are not a Consumer then, you agree to indemnify us in full against all loss, damage, costs (including legal costs) in excess of £3,000 in respect of any individual item or £6,000 in aggregate which we may incur arising out or in connection with any claims or demands made by the Owner(s) (if you are not the Owner(s)) in relation to the Goods or the Services provided by us under these Conditions, including any associated costs to us.
(c) YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS AGAINST ANY CUSTOMS, DUTIES, OR TAXES THAT WE MAY BECOME LIABLE TO PAY AS A RESULT OF ACTING AS YOUR DIRECT OR INDIRECT REPRESENTATIVE IN ACCORDANCE WITH CONDITION 7. THIS INDEMNITY IS WITHOUT PREJUDICE TO ANY OTHER RIGHTS WE MAY HAVE.
18. NOTICES
(a) Any notices under this Contract shall be sent in writing by email to the respective party’s email address provided in the Estimate. Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside 9:00 am – 5:00 pm (“Business Hours”) in the place of receipt, when Business Hours resume. Should the sender receive a notification of unavailability or absence from the recipient email address, they shall seek an alternative address from the other party, failing which they may send the notice by signed-for registered post to the receiving party’s last known registered address where it shall be deemed received 3 Working Days after it is sent.
(b) This Condition 18 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.
19. VALIDITY AND SEVERANCE
If any of these Conditions is held to be illegal or unenforceable, in whole or in part, under any enactment or rule or law, then that provision shall to the extent necessary and insofar as permitted by law:
(i) be deemed not to form part of these Conditions; and
(ii) be deemed to be replaced by such provision as is valid and enforceable and which is as close as permissible to the invalid or unenforceable provision. The validity and enforceability of the remainder of these Conditions shall not be affected.
20. ADDITIONAL RIGHTS FOR CONSUMERS ONLY
(a) This Condition 20 applies only if you are a Consumer. If there is any conflict between this Condition 20 and the rest of these Conditions, this Condition 20 takes precedence.
(b) In supplying the Services, we shall:
(i) perform the Services with reasonable care and skill;
(ii) use reasonable endeavours to perform the Services in accordance with each Estimate; and
(iii) comply with all our obligations under applicable laws, statutes, regulations and codes in force from time to time.
(c) If you require us to provide you with our case making or packing Services, you acknowledge that such packaging will be bespoke / custom made specifically for your Goods and your right to cancel shall not apply to these Services.
(d) You may cancel the Contract by giving us notice of cancellation within the fourteen days from the Contract Start Date (the “Cancellation Period”). To exercise your right to cancel, you must inform us of your decision to cancel this Contract by a clear statement (e.g. a letter sent by post, fax or email). You can use the following model cancellation form set out below, but it is not obligatory:
To Momart Limited, Exchange Tower, 9th Floor, 1 Harbour Exchange Square, London E14 9GE or enquiries@momart.co.uk:
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/the supply of the following service [*], Ordered on [*]/received on [*],
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
Date [*]
[Delete as appropriate]
(e) To meet the cancellation deadline, it is sufficient for you to send your communication to the address above concerning your exercise of the right to cancel before the Cancellation Period has expired.
(f) If we have performed any Services during the Cancellation Period and you then notify us during the Cancellation Period that you wish to cancel the Contract, you will be obliged to pay us an amount that is proportionate (based on the total price for the Contract) to the amount of the Services that we have supplied at the time you notify us of your wish to cancel. If we have completed performing the Services during the Cancellation Period in accordance with the Estimate, you will lose your right to cancel the Services.
(g) If you cancel your Contract with us wrongfully (i.e. in a manner not permitted under this Condition 20), we reserve the right to claim any reasonable costs incurred by us up to the date you notify us of your intention to cancel the Contract for any resources that we had allocated to provide the relevant Services at the agreed date and time and which we were unable to re-allocate to an alternative job. If you have made payment of any charges in full or in part, we will deduct the amount due to us and refund the remaining amount to you in accordance with Condition 20 (h) below.
(h) Subject to Conditions 20 (c), (e) (f) and (g), if you cancel the Contract in accordance with this Condition 20, we will reimburse you all payments we have received from you under the Contract.
(i) If, in the unlikely event our Services do not conform with Condition 20 (b) you may, where possible request us to repeat the Services within a reasonable time or we may will provide you with a refund, the amount of such refund shall be reasonably determined by us.
(j) If you are not satisfied with our Services, we request that you discuss your concerns with your account manager as set out in the Estimate. We will use our best endeavours to resolve any complaints you may have.
(k) You can bring legal proceedings in respect of this Contract in the English or Welsh courts. If you live in Scotland, you can bring proceedings in respect of this Contract in either the Scottish or English courts. If you live in Northern Ireland, you can bring proceedings in respect of this Contract in either the Northern Irish or English courts.
21. REMEDIES
Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
22. ENTIRE AGREEMENT
These Conditions and the Estimate(s) contain the entire agreement between you and us in relation to the provision of the Services and supersede any earlier conditions and/or any representations by us concerning the provision of the Services.
23. THIRD PARTY RIGHTS
Except where expressly provided by this Contract, nothing in these Conditions shall confer on any third party any benefit or the right to enforce any of these Conditions. Your rights and our rights to vary or rescind the Contract are not subject to any third party rights.
24. LAW AND JURISDICTION
The Contract and any disputes or claims (including non-contractual claims connected with the Contract) shall be governed by English law, and any disputes arising in connection with the Contract and/or the Services will be submitted to the exclusive jurisdiction of the English Courts except that any party may apply for injunctive relief or enforcement in any court of competent jurisdiction.