Version 1.0, 1st October 2021
GENERAL TERMS AND CONDITIONS OF SALE AND SUPPLY
These General Terms and Conditions of Sale and Supply (the “GTCs”) constitute and govern the contractual relationship between Mompalao Trading Ltd, a company established under the Laws of Malta, bearing the company registration number C 41123, and having its registered address at 115, E.B. Vella Street, Mosta, MST 3152, Malta and the Client, in connection with any Product Request and any Order Confirmation.
- The following capitalized words and/or terms shall be interpreted as follows in these GTCs unless the context clearly implies otherwise:
Shall mean Mompalao’s client, as indicated by Mompalao in the Order Confirmation;
Shall mean the Client’s order of Products confirmed by Mompalao in an Order Confirmation;
Shall mean Mompalao’s confirmation in writing, confirming that Mompalao shall execute a Client’s Product order request;
Shall mean the products available for purchase from Mompalao;
Shall mean the Client’s order request to Mompalao’s for the supply and sale of Mompalao’s Products to the Client, irrespective of manner of receipt of the said request by Mompalao;
Shall mean www.mompalao.mt;
- The Client and Mompalao are herein individually referred to as a “Party” and collectively referred to as the “Parties”.
- Mompalao only sells its Products to companies and businesses.
- By submitting a Request to Mompalao, the Client confirms that it is acting in relation to its trade, business, craft or profession and that the Client is a company or a business (if a trader), and not a consumer. For the avoidance of doubt, the Parties agree that consumer laws do not therefore apply to these GTCs and to Mompalao’s performance of any Confirmed Order.
- PRODUCT RULES OF USE
- Products may be used exclusively for publicity and/or promotional purposes.
- The Client shall not sell the Products to third parties, unless permitted by Mompalao in writing.
- Mompalao shall be exempt from any liability if (i) the Client or a third party makes any use of the Products in breach of clause 3.1. of these GTCs and/or (ii) the Client sells the Products to third parties in breach of clause 3.2. of these GTCs.
- Without prejudice to clause 3.3. of these GTCs, the Client’s breach of clauses 3.1. and/or 3.2. of these GTCs shall constitute a material breach of these GTCs.
- ORDER PERFORMANCE
- Any Requests submitted to Mompalao, be it via the Website, via email, or via other means, must be confirmed in writing by Mompalao to bind Mompalao and become a Confirmed Order.
- Performance of any Confirmed Order shall be in terms of these GTCs. An Order Confirmation under these GTCs shall constitute an agreement between the Parties.
- Mompalao has the right to execute any Order Confirmation in parts, by delivering the Products in tranches. In such case, Mompalao shall be entitled to invoice each tranche delivered separately.
- The Client hereby agrees that the Products delivered may slightly vary in shape, colour, materials, weight, packaging, concentration, composition, functionality and similar matters from the Products presented on Mompalao’s Website and catalogues. Such variance may occur without prior notice and shall be without any liability to Mompalao.
- Product delivery dates shall be as indicated by Mompalao in writing. Client hereby agrees that such indicated delivery dates are however indicative, only an estimate, and are non-binding. Actual Product delivery dates may vary without any liability to Mompalao. Client hereby accepts to accept delivery of the Product on the actual delivery date and to bear any transport charges.
- Any Product prices indicated on Mompalao’s Website and catalogues are subject to change and require Mompalao’s confirmation in writing through an Order Confirmation.
- Product deliveries shall be carried out using Mompalao’s transport providers.
- Mompalao shall not be held responsible for any Product delays or errors caused by third parties (including Mompalao’s sub-contractors).
- Products shall be delivered in good faith that they do not breach any intellectual property laws or any regulations concerning product and material safety. Mompalao cannot be held responsible for any costs to the Client resulting from the national regulations and laws in the country of the Client or that of the delivery of the Products.
- The Client is required to accept the delivery of the Products when they are delivered to it, and to provide Mompalao with any co-operation which may be necessary in this respect.
- If the Client refuses to take delivery or fails to provide necessary information or instructions, or otherwise fails to render the co-operation required to take delivery of the Products, Mompalao will be entitled to take any and all measures deemed desirable by Mompalao in this respect (such as storage with third parties) for the Client’s account and risk, without prejudice to Mompalao’s other rights at Law and under these GTCs. The Client agrees that in such case, it shall bear any additional costs which may be incurred by Mompalao for such purpose and shall make good for any damages and other costs which Mompalao may incur.
- Mompalao shall indicate at time of quoting the Fees whether the Products requested are available in stock. That the Products show available in stock on the Website shall not necessarily mean that the Products are actually available in stock and such text on the Website is to be only taken as a possible indication.
- Whether the Products are available in stock or otherwise shall be as confirmed by Mompalao in its Order Confirmation.
- PRODUCT SAMPLES
- Product samples can be made available if confirmed by Mompalao in an Order Confirmation. Product samples are provided in terms of these GTCs.
- Samples serve as an indication only. The Client hereby agrees that actual Products delivered may slightly vary from the samples provided, including in shape, colour, materials, weight, size, packaging, functionality and similar matters.
- A surcharge may apply for the delivery of small quantities of Products, as may be indicated by Mompalao in writing.
- Mompalao is entitled to charge costs of any Product packaging separately.
- Packaging will not be taken back by Mompalao and shall be disposed of by the Client in compliance with applicable laws.
- PRINT / TEXTILE / CUSTOMIZED PRODUCTS
- If Mompalao receives a Request for textile Products whose colour, type and size and other things, are determined by the Client (the “Textile Products”), the Client may order a sample of such Products (the “Textile Sample”) if so agreed by Mompalao. Further, if Mompalao receives a Request for a Product which requires printing or other customizations (which can also be a Textile Product) (the “Customized Product”), the Client will be obliged to supply directly reproduceable materials such as logos and texts (the “Materials”) having the qualities and features indicated by Mompalao, which must be submitted within forty-eight hours from the date that the same are requested by Mompalao. Failure to supply such Materials to Mompalao within such timeframe shall mean that Mompalao cannot guarantee that the Products requested are still in stock and that the Fees quoted still apply.
- Mompalao will be required to submit a proof of the Textile Products and/or Customized Products to the Client (the “Proof”), prior to procuring the same only if such has been expressly agreed upon by Mompalao.
- The Client will be required to notify Mompalao of its approval or disapproval of the Proof within forty-eight (48) hours from receipt of the Proof. Failure to so notify shall mean that Mompalao shall have the right to not accept the Client’s Request. Further, in such case, Mompalao cannot guarantee that the Products requested are still in stock and that the Fees quoted still apply.
- The Client accepts that Mompalao shall bear no responsibility for the supply of any Products insofar as the same are identical to the approved Proof. Further, the Client accepts that actual Products delivered may vary slightly from the Proof, including in terms of shades, logos, dimensions, materials, sizes and quality.
- Delivery periods and charges may be subject to changes as a result of a Proof, as may be indicated by Mompalao in writing.
- The Client accepts that any size information in Mompalao’s catalogues and Website is an approximation and is subject to errors and changes. Material, colour, design, technical condition, packaging of individual Products as well as size and type of packaging units are subject to change. All these changes are no reason for claims even if there are deviations within one and the same delivery.
- The Client accepts that Mompalao does not guarantee exact colour printing, especially when made on objects with colours other than white.
- Minor departures for a Proof, including but not limited to colour, size, weight, logos, shape, or form, will not qualify as a defect and shall be accepted by the Client.
- COMPLAINTS AND RETURNS
- Any Client complaints must be submitted to Mompalao by email at email@example.com.
- Upon delivery, the Client must check if the delivered Products comply with the Parties’ agreement. If any defects and/or shortages are noted, the Client shall promptly inform Mompalao thereof in writing, stating good reasons. The Client must notify Mompalao of any invisible defects within two days of their discovery and in any case within two days of the moment at which the Client should, in reasonableness, have discovered such.
- Complaints are only possible up to two (2) business days from delivery date.
- On filing a complaint, the Client will be required to render any and all co-operation to Mompalao as Mompalao may require in investigating whether the complaint is well-founded. In the event that the Client’s complaint turns out to be unfounded, the costs of the investigation will be borne by the Client.
- In the event that Mompalao deems the Client’s complaint to be well-founded, Mompalao will be exclusively required to, at its option, (i) replace the defective Products, or (ii) deliver the missing Products, (iii) or to credit or pay back in whole or in part the amounts charged in connection with the defective Product. Mompalao may subject any refund to the Client first returning the defective Products.
- Complaints of manipulated and/or customised items will not be accepted if the manipulation/customisation has not been carried out by Mompalao (or its subcontractors).
- The Client shall not be able to assert any claims or complaints if the Products have, upon delivery, in whole or in part, been consumed, treated, processed, merged, amended, customized, or otherwise damaged or amended by Client.
- Complaints about damaged packages will only be accepted if the damage is included in the courier's delivery receipt.
- In case of incomplete Product order deliveries, Mompalao may provide the missing Products by means of the same shipping method used in the original order and is not obliged in any circumstance to bear any costs related to express shipping.
- Complaints about late deliveries of Products will not be accepted.
- Returns are subject to Mompalao’s approval on a case-by-case basis and in Mompalao’s sole discretion, and provided that the Products are still properly packed in their original packaging. Returns are not possible if the Client attempts to make a return following fifteen (15) calendar days from the delivery date.
- Without prejudice to clause 9.11:
- Partial returns of Products will lead to a revision of the fees charged when the order was made confirmed by Mompalao, according to the amounts effectively kept by the Client;
- In case of returned Products, shipping costs (to and from) will be charged to the Client, as well as a fee for Product manipulation as will be indicated to Client in writing by Mompalao; and
- The collection of faulty or returned Products shall be done in the exact same conditions they were delivered in, in terms of packaging and delivery address.
- FEES & PAYMENT TERMS
- In exchange for the performance of a Confirmed Order, the Client shall pay to Mompalao the fees indicated by Mompalao in its Order Confirmation (the “Fees”).
- Any Fees indicated are exclusive of VAT where applicable, which must be borne by the Client.
- The Fees shall be paid to Mompalao within thirty (30) calendar days of the invoice date, unless otherwise indicated by Mompalao in writing.
- Late payment interest shall apply at the highest rate permitted by Law.
- Mompalao reserves the right to deliver up to 5% more or 5% less of the quantity of Products agreed under an Order Confirmation, and to invoice Fees on a pro rata basis, according to the final quantity of Products delivered.
- Fees quoted shall be valid for five (5) working days from the date of quoting. Mompalao reserves the right to cancel a Confirmed Order or to suspend its performance, due to the Client’s non-fulfilment of its respective obligations, including the Client’s failure to pay any Fees due to Mompalao.
- Mompalao has the right to change any agreed-upon Fees in an Order Confirmation before affecting delivery of the Products, in the event of changes after the date of the Order Confirmation beyond Mompalao’s control, such as but not limited to changes in fluctuations of exchange rates, raw materials, costs charged by suppliers, wage costs, customs costs, transports costs and Governmental measures.
- Ownership and title to the Products shall pass onto the Client as from the moment that the Fees due have been fully received by Mompalao. This notwithstanding, the delivery and transport of Products as from the moment of dispatch shall be at the Client’s own and sole risk.
- The Client shall render any and all co-operation necessary to Mompalao should Mompalao decide, for any reason, to recall any Products delivered to the Client and/or communicate any warning in connection with the Products to the public.
- To enable Mompalao to remove any Products from circulation, the Client shall on Mompalao’s first demand, sell and deliver back to Mompalao any and all delivered Products that the Client has in its possession. In exchange for such recall, Mompalao shall compensate the Client the corresponding Fees paid for such Products.
- The Client shall provide Mompalao any information which may be requested by Mompalao, within the timeframes indicated by Mompalao, to enable Mompalao (or its sub-contractors) to issue any notifications which may be necessary in relation to a Product recall.
- INTELLECTUAL PROPERTY
- The Client hereby warrants to hold all necessary rights in any Materials supplied to Mompalao and that the Products / services requested to incorporate the Materials shall not infringe third party rights as a result of such incorporation.
- Any intellectual property and intellectual property rights in and to the Products shall be and shall remain the property of Mompalao and its licensors. No transfer thereof shall occur as a consequence of the sale contemplated under these GTCs and respective Confirmed Order.
- Mompalao hereby warrants the quite possession of the Products sold and that the Products sold, shall be free from any latent defects in terms of the Civil Code (Cap 16 of the Laws of Malta).
- LIABILITY & INDEMNITY
- Mompalao shall not be liable to the Client for any indirect, incidental or consequential damages or liability of any kind, including but not limited to special, exemplary or punitive damages, loss of profits, loss of goodwill, loss of time, business interruption, and regardless of the form of action, whether in contract, tort, strict liability or otherwise, including without limitation, such damages arising out of or in relating to these GTCs or the use, functionality, or inability to use, the Products.
- The Client hereby agrees that Mompalao shall hold no liability for any late delivery of Products.
- Where any damages may be compensated, Mompalao’s maximum liability to the Client, whether in contract, tort, negligence or otherwise, for all damages, losses, claims and causes of action whatsoever arising out of or in relation to these GTCs and a Confirmed Order, shall be limited to the amount of Fees actually paid by the Client in relation to the respective Confirmed Order. The Client hereby agrees to release Mompalao from any liability in excess of this capping.
- Nothing in these GTCs shall exclude or limit a Party’s liability for any wilful misconduct, gross negligence or bad faith.
- The Client hereby agrees to fully indemnify and hold harmless Mompalao and its employees, directors, contractors, consultants and associates for and against any and all claims, losses, liabilities, costs expenses or damages (including reasonable legal fees) incurred by reason of any claim, demand, lawsuit or action by a third party resulting from the Client’s breach of these GTCs and Confirmed Orders and/or breach of applicable laws and/or breach of third party rights.
- FORCE MAJEURE
- Neither Party hereto shall be deemed in default hereunder or liable for any loss or damage resulting from delays in performance or from failure to perform or comply with the terms of these GTCs due to any fortuitous event beyond its reasonable control. On the part of Mompalao, such shall include but not be limited to Product transport related problems, any defaults by suppliers and third parties engaged by Mompalao to help Mompalao execute a Confirmed Order, interruption of supply of raw materials, semi-finished Products and customs and delivery issues.
- NO WAIVER
- The failure of either Party hereto to insist upon the strict adherence to any term of these GTCs on any occasion shall not be considered as a waiver of any right hereunder nor shall it deprive that Party of the right to insist upon the strict adherence to that term or any other term of these GTCs at some other time.
- ENTIRE AGREEMENT
- These GTCs, as confirmed in an Order Confirmation, shall expressly replace and supersede any and all other agreements, oral or written, between the Parties hereto with respect to the subject matter hereof.
- Headings are used herein for convenience only and shall not affect any construction or interpretation.
- Amendments and deviations from these GTCs shall only have effect if they have been agreed to in writing by Mompalao (Mompalao’s agreement via email shall suffice).
- If any provision in whole or in part of these GTCs shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
- GOVERNING LAW AND DISPUTES
- These GTCs shall be governed by and construed in accordance with the Laws of Malta.
- Any dispute between the Parties directly or indirectly relating to these GTCs shall be submitted to the exclusive jurisdiction of the Courts of Malta.