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Terms and Conditions
CONDITIONS OF
1
DEFINITIONS
In the Contract,
except where the context otherwise requires, the following words shall have the
following meanings:
“Buyer” the person, firm or company to whom or to which
the Company agrees to sell the Goods subject to the Contract;
“Company” is Controls for Doors Ltd;
“Consumer” an individual person acting
outside his or her business;
“Contract” the agreement between the
Buyer and the Company comprised of, collectively, any quotation of the Company,
the Order Confirmation and these Conditions;
“Goods” the articles, products and/or things listed on
the Website for sale including samples where relevant, which form the subject
matter of the Contract;
“Order Confirmation” is as described in Condition 3; and
“Website” the Company’s website (which is currently at www.cfdltd.com).
Any phrase in the
Contract introduced by the term "include", "including",
"in particular" or similar expression will be construed as
illustrative and shall not limit the sense of the words preceding that term.
2
THE CONTRACT
2.1
The Contract (together with any documents referred to
in it) sets out the terms on which the Company supplies Goods to Buyers. Buyers should read carefully and understand
the Contract before ordering any Goods from the Website. By ordering any Goods, the Buyer agrees to be
bound by these Conditions and the Contract.
2.2
The Buyer should contact the Company’s sales@cfdltd.com if it has any difficulty understanding
any of the terms of the Contract or has any other queries. The Company
recommends that the Buyer keeps a copy of the complete Contract for
future reference.
3
ACCEPTANCE
Any quotation,
whether written or oral, submitted by the Company shall be deemed to be an
invitation to treat and not an offer. The placing by the Buyer of any order for
the Goods, whether written or oral, and whether or not any quotation may have
been submitted by the Company, shall constitute an offer by the Buyer, and the
Contract shall not be taken to have come into existence unless and until the
Company shall have accepted the Buyer’s offer in writing or by email (the “Order Confirmation”). Any order placed
by the Buyer with any of the Company’s salesmen or other employees or representatives
shall be subject to written or email acceptance by the Company as aforesaid.
Acceptance by the Company shall be deemed to include acceptance of these Conditions,
which shall form the Conditions of the Contract and shall apply to the exclusion of any terms or conditions put
forward by or on behalf of the Buyer.
The Contract will relate only to those Goods detailed in the accepted
order, or, if different, will relate only to those Goods whose dispatch (and
readiness for dispatch) the Company confirms when accepting the order.
4
VARIATION
4.1
The Buyer’s attention is specifically drawn to the
fact that any directors of the Company have authority to make or give on behalf
of the Company any representation, warranty, condition or statement other than
those contained in the Contract. However no variation of or addition to the Contract,
whether written or oral, shall have effect unless and until agreed in writing
by the Company and signed by a Director of the Company.
4.2
The Company has
the right to revise and amend these Conditions from time to time. The Buyer will be subject to the Company’s
policies and Conditions in force at the time that it orders Goods from the
Company, unless any change to those policies or these Conditions is required to
be made by law or governmental authority (in which case it will apply to orders
previously placed by the Buyer), or if the Company notifies the Buyer of the
change to those policies or these Conditions before the Company sends the Buyer
the Order Confirmation (in which case the Company has the right to assume that
the Buyer has accepted the change to the policies or Conditions, unless in the case of a Buyer who is a Consumer
only, the Buyer notifies the Company to the contrary within seven working
days of receipt by the Buyer of the Goods).
5
INFORMATION which the company is required to give the
buyer
5.1
www.cfdltd.com is
a site operated by the Company. The
Company is registered in England and Wales under company number 03077177 and
has a registered office at Priory House Pilgrims Court, Sydenham Road,
Guildford, Surrey, GU1 3RX, Fax Number 01883 652055, email address sales@cfdltd.com. The Company’s
main trading address is
5.2
A description of
the main characteristics of the Goods is contained on the Website. Such a description will be contained in the
Order Confirmation contained with the Goods when delivered to the Buyer.
5.3
The price of the
Goods (including delivery and packaging charges) and arrangements for payment
are as described in Condition 17.
5.4
The arrangements
for delivery of the Goods are as shown at www.cfdltd.com/faq.htm. Note that delivery may take place more than 30 days
from order. By accepting these
Conditions, the Buyer agrees to a later delivery date as specified in www.cfdltd.com/faq.htm. Other details of delivery are set out in Conditions 11 and 20.
5.5
The Buyer has the
rights of cancellation detailed in Condition 16.
5.6
If Goods ordered
by the Buyer are not available, the Company reserves the right to supply
substitute goods of at least equivalent quality and price.
5.7
The Goods are
guaranteed for 12 months.
5.8
Details of
support/after sales services are as shown at contact us page.
5.9
The technical
means for concluding the Contract to buy Goods are set out in Condition 3. If the Buyer
has made a mistake in inputting any information on the Website in relation to
an Order, they should click on the back arrow to change it.
5.10
The language of
the Contract will be English.
6
INFORMATION GIVEN
BY THE BUYER
6.1
Where appropriate the Buyers shall submit sufficient
data, instructions, specifications and other information within a reasonable
time to enable the Company to proceed forthwith with any order that is
accepted.
6.2
In the event that any data, instructions,
specifications and/or other information supplied by the Buyer are incorrect or
incomplete or are altered or added to in any material respect, the Company
shall be entitled to amend any price or quotation made by it so as to take
accounts of any increase to it in costs, whether actual or projected.
7
SALES to countries outside
7.1 The Company does not accept orders from Buyers outside the
7.2 The Company will not be liable for any breach by the Buyer of
this Condition 7.
8
THE BUYER’s STATUS
8.1
By placing an
order through the Website, the Buyer warrants that:
8.1.1
it is legally
capable of entering into binding contracts;
8.1.2
if it is a Consumer:
(a)
it is at least 18
years old; and
(b)
it is placing the
order as a consumer, i.e. an individual acting outside his or her business;
8.1.3
it is resident in
the
8.1.4
it is accessing
the Website from the
8.2
If the Company
discovers that any of the above warranties are incorrect, the Company shall be
entitled to terminate the Contract and to pursue any legal remedies that the
Company may have under the general law.
9
TIME LIMITS
9.1
Where the Buyer is
not a Consumer, any time or date quoted by
the Company for delivery of all or any of the Goods is an estimate only, and
the Company shall not be liable for any failure to meet any such estimate, nor
for any loss, whether financial or otherwise, resulting directly or indirectly
there from.
9.2
Where the Buyer is
a Consumer, if a Good (or
substitute good) is unavailable so that the Company cannot deliver it to the
Buyer within 30 days of the Buyer's order, the Company will contact the
Buyer and either agree a later delivery date or permit the Buyer to cancel the
Contract in which the case the Company will refund all monies paid in
accordance with the Company’s refund policy (set out in Condition 26 below).
10
AVAILABILITY
All
Goods quoted from stock are quoted subject to being unsold on the date of the
Order Confirmation.
11
DELIVERY
The
Company shall deliver the Goods, when ready, to the Buyer at such address in
12
LOSS OR DAMAGE IN
TRANSIT
Where the Buyer is not a Consumer, the
Company accepts no liability whatsoever for loss of or damage to Goods (other
than where the Goods are collected by or on behalf of the Buyer) in transit
unless notified in writing of the details of the loss or damage within seven
days following dispatch of the Goods. The Company accepts no liability whatsoever
for loss of or damage to Goods which are collected by or on behalf of the
Buyer.
13
STORAGE
Where the Buyer is not a Consumer, in the
event that the Buyer shall be unable to accept delivery of the Goods the Buyer
shall arrange for the Goods to be at once removed and stored at its own risk
and expense. If the Goods shall not have been removed as aforesaid, the Company
shall be entitled without further reference to the Buyer to store the Goods
upon any of its own premises or arrange for their storage with a third party in
which event any costs (including VAT thereon) so incurred by the Company
(including but not limited to storage, carriage and insurance) shall be borne
by the Buyer.
14
DESCRIPTION
Where the Buyer is not a Consumer, any
specification, drawing and/or other particulars relating to the Goods is,
unless otherwise expressly stated in writing, approximate only and any
specification, description, design, drawing, illustration and/or other
particulars contained in any catalogue and/or other promotional and/or
advertising matter of the Company is intended merely to present a general idea
of the Goods therein described and shall not be taken as forming part of the
Contract. Accordingly, the Company reserves the right without notice to the
Buyer to alter any such specification, description, design, drawing,
illustration and/or other particulars and to supply the Goods as so altered in
performance of the Contract.
15
THE COMPANY’S
LIABILITY
15.1
Where the Buyer is not a Consumer, the following sub-conditions apply:
15.1.1
All information (including without limitation figures)
given by the Company relating to the performance of the Goods or the cost of
operating the Goods is based upon the Company’s experience in the field in
question, and all such figures are such as the Company might as a result of
such experience expect to obtain on test, but the Company shall (subject to Condition
26.1.2) unless such information shall have been specifically guaranteed in writing, accept no liability
should it prove to be in any way inaccurate.
15.1.2
In the event that the performance of the Goods shall
fail to fulfill the terms of any written guarantee given by the Company, the Buyer
shall allow the Company reasonable time and opportunity to fulfill the said
terms. If after such reasonable time and opportunity the Company shall fail to
fulfill the said terms, the Buyer shall be entitled to cancel the Contract only
as regards such of the Goods that fail to fulfill the said terms.
15.1.3
It shall, (subject to Condition 26.1.2) be the responsibility of the Buyer to ensure that
the capacity and performance of the Goods are sufficient and suitable for the
purpose or purposes intended or for which the Goods are to be used or sold by
the Buyer.
15.1.4
Where the Buyer provides any item of equipment for the
installation and/or operation of the Goods and/or ancillary to and/or for use
in connection with the Goods, it shall be the Buyer’s responsibility to ensure
that the use of any such item does not adversely affect the performance of the
Goods.
15.1.5
Nothing in the
Contract shall limit the liability of the Company to the Buyer for death or
personal injury resulting from its negligence (as defined in the Unfair
Contract Terms Act 1977), for fraudulent misrepresentation, for breach of the Company’s
obligations arising from Section 12 of the Sale of Goods Act 1979 or for any
liability which cannot be excluded by law.
15.1.6
Subject to
Condition 15.1.5 and 26.1.2 and the liability of the Company for defective Goods
set out in Condition 26.1.1(g), the following provisions set out the limitations on
the liability of the Company (including any liability for the acts and
omissions of its respective employees, agents and sub-contractors) to the Buyer
in all other cases with respect to:
(i) any negligence of the Company and/or any of its employees and/or agents;
(ii) any failure to perform or performance of or breach of its contractual
obligations arising under the Contract (whether express or implied); (iii) any
use made or resale by the Buyer of any of the Goods, or of any product incorporating
any of the Goods; (iv) any supply, installation, repair and/or maintenance of
any of the Goods; and (v) any representation, statement, act or omission given,
made or carried out under or in connection with the Contract (whether such
liability arises in contract, tort, negligence, misrepresentation, breach of
statutory duty or otherwise howsoever).
15.1.7
Except as
expressly set forth in the Contract, all conditions, warranties and
representations expressed or implied by statute, common law or otherwise with
respect to the Goods are excluded to the fullest extent permitted by law and in
no event shall the Company be liable for any negligence or tortious loss or for
any of the following losses or damage (whether such losses or damage were
foreseen, foreseeable, known or otherwise and whether or not the Company is
advised of the possibility of loss, liability, damage or expense): (i) loss of revenue; (ii) loss of
actual or anticipated profits (including for loss of profits on contracts);
(iii) loss of the use of money; (iv) loss of anticipated savings; (v) loss of
business; (vi) loss of operating time or loss of use; (vii) loss of
opportunity; (viii) loss of goodwill; (vix) loss of reputation; (x) loss of, damage to or corruption of data; or any
indirect or consequential loss or damage howsoever caused (including, for the
avoidance of doubt, where such loss or damage is of the type specified in (i)
to (x) of this Condition 15.1.7). Direct
financial and other loss not excluded by this Condition is accepted by the Company
up to the limits set out in Condition 15.1.8. Accordingly, it shall be for the Buyer to insure
against any liability arising from its use of the Goods.
15.1.8
Except as stated
in Condition 15.1.5, the aggregate liability of the Company to the Buyer
(including liability for recovery of sums paid by the Buyer and for all
damages, costs and expenses) with respect to all claims under or in connection
with the Contract shall be limited to 100% of the [price of the Goods
which gave rise to liability][price paid under the Contract.
15.2
Where the Buyer is a Consumer, the following
sub-Conditions apply:
15.2.1
The Company
warrants to the Buyer that any Good purchased from it through the Website is of
satisfactory quality.
15.2.2
If the Company breaches
these sub-Conditions to Condition 15.2 it will be responsible for any losses which the Buyer
suffers as long as they were reasonably foreseeable to both the Buyer and the
Company at the time of the Buyer's order and the Order Confirmation.
15.2.3
Any
manufacturer’s warranty or guarantee applicable to the Goods shall be in
addition to any responsibility that the Company has to the Buyer under the
Contract.
16
CANCELLATION
16.1
Where the Buyer is
not a Consumer, the following cancellation terms shall apply:
16.1.1
Following acceptance as aforesaid by the Company of
the Buyer’s order, no cancellation, either in whole or in part, may be made by
the Buyer other than with the prior written consent of the Company and upon
terms which fully pay to the Company the amount or amounts of all work
undertaken, time expended and costs incurred by it in connection with the
Buyer’s order together with a reasonable profit margin.
16.2
Where the Buyer is a Consumer, the following
cancellation terms shall apply:
16.2.1
As the Buyer is
contracting as a consumer, the Buyer has a statutory right to cancel the
Contract for any reason at any time within seven working days, beginning on the
day after the Buyer receives the Goods or (where it has been agreed that the
Goods will be delivered in instalments) the last of the Goods. If the Buyer exercises the right, the Buyer
will receive a full refund of the price paid for the Goods in accordance with
the Company's refunds policy (set out in Condition 26 below). To
cancel a Contract under the Buyer's statutory rights, the Buyer must inform the
Company in writing of its intention to cancel by hand delivery, post or fax to
the place given in Condition 5.1 or by email to sales@cfdltd.com.
16.2.2
When exercising
the cancellation right, the Buyer must return the Goods to the Company
immediately. See Condition 26 as to the manner and cost of returning the Goods.
16.2.3
The Buyer is
entitled to a reasonable opportunity to inspect the Goods. At all times, the Buyer must take reasonable
care of the Goods and must not let them out of its possession. If the Buyer is in breach of its obligations
to take reasonable care in this Condition 16.2.3, the Company will have a claim against it and may
deduct from the refund costs incurred by the Company as a result of the breach.
16.2.4
Details of this
statutory right, and an explanation of how to exercise it, are also provided in
the Order Confirmation. This provision
does not affect the Buyer's statutory rights.
16.2.5
The cancellation
right described in this Condition 16.2 is in addition to any other right that the Buyer
might have to reject the Goods, for instance because they are faulty or
misdescribed.
17
PRICE
17.1
Any price quoted by the Company is based
upon current costs at the date appearing on the quotation, but the actual price
to be charged to the Buyer under the Contract shall be based upon costs current
at the date of the Order Confirmation and shall include the cost to the Company
of any carriage, insurance and/or storage effected by it in connection with the
Buyer’s order in accordance with the Contract. The Company shall be entitled at
any time up to the date of the Order Confirmation to vary the price quoted to
the Buyer.
17.2
Where
the Buyer is a Consumer, if the price of a Good at the time when
the Company is ready to dispatch it is lower than the price at the time of the Order
Confirmation, the Company will charge the Buyer the lower price. If the price of a Good at that time is
higher, the Company will (at its discretion) either contact the Buyer for
instructions before dispatching the Good, or cancel the Buyer's order and notify
the Buyer of such cancellation.
17.3
The prices include
VAT but exclude delivery costs, which will be added to the total amount due as
set out in the Delivery Guide http://www.cfdltd.com/faq.htm.
17.4
The Company is
under no obligation to provide a Good to the Buyer at an incorrect (lower)
price, even after the Company has sent the Buyer an Order Confirmation, if the
pricing error is obvious and unmistakeable and could have reasonably been
recognised by the Buyer as a mis-pricing.
17.5
Payment details for
all Goods must be submitted by credit or debit card at the time of placing an
order. The Company accepts payment with Visa, Visa Debit, MasterCard, Delta
& Maestro. Would you like to be able to
charge any credit card handling fees? If so these should be detailed in this
Condition.
17.6
Where the Buyer is a Consumer, subject to Condition 18 the Company shall charge the Buyer’s credit or debit
card at the time of providing Order Confirmation.
17.7
Where the Buyer is a Consumer, the Company will not charge the Buyer's credit or
debit card until the Company despatches the Buyer's order.
18
CREDIT
Where the
Buyer is not a Consumer, and the
Buyer wishes to open a credit account with the Company, the Company may
make a search with a credit reference agency, which will keep a record of that
search and may share that information as required with other businesses. The
Company may also make enquiries about the principal directors of the Buyer with
a credit reference agency. In considering the Buyer’s request, the Buyer accepts
that the Company may consult with and disclose certain data (including personal
data) to credit reference agencies, banks, credit insurers and other
responsible organisations outside
the Company’s business that it has nominated (“third parties”), and that such
third parties may process the data. The Buyer has the right to know what data is
held by the Company and such third parties if it applies to the relevant party
in writing and pays the applicable fee. The following terms shall also apply to
Buyers who wish to open a credit account with the Company:
18.1
Credit accounts are only opened subject to
satisfactory references being received and maintained, subject to the Buyer’s
observance of the terms on which credit is given.
18.2
If the Buyer has an approved credit account,
settlement of invoices (which shall be issued on Order Confirmation) is
required by the end of the month following the month in which the invoice is
issued. Interest at the monthly rate of 2% above Barclays Base Lending Rate
will be charged from day to day on all monies outstanding after this time until
the actual date of payment, and any cash discount referred to in the quotation,
correspondence and/or elsewhere will not be allowed to the Buyer.
18.3
Where payment is agreed to be made by instalments, any delay or default by the Buyer in making
payment in respect of any one instalment shall render all
the remaining installments due forthwith, and interest will be charged in
accordance with Condition 18.2 with immediate effect until the actual date of
payment.
18.4
The Company reserves the right, on giving to the Buyer
notice of its intention to do so, to close a credit account and/or withhold
performance of any or all of its obligations under the Contract if in its
absolute discretion it considers the Buyer’s credit status to be unsatisfactory.
It is
not possible for Buyers who are Consumers to have a credit account.
19
DATE FOR PAYMENT
Where the Buyer is not a Consumer, and subject
to Condition 18.2 Goods will not be delivered until payment has been
received in full.
20
DELIVERY BY
INSTALMENTS
Where
delivery is agreed to be made by installments, each installment shall be deemed
to be a separate and distinct contract and no default by the Company in respect
of any one or more installment shall entitle the Buyer to reject or withhold
payment in respect of any other installment or installments.
21
DISPUTES AND SET
OFF
Where the Buyer is not a Consumer, any
liability of the Company under the Contract shall be subject to and conditional
upon the due performance and observance by the Buyer of all its obligations
under these Conditions, and subject to these Conditions, the Buyer shall not be
entitled to withhold or delay payment or exercise any right of set-of
whatsoever and howsoever arising or arisen which might otherwise be available
to it.
22
RISK
Subject
to Condition 12, the risk of loss of or damage to the Goods or any of
them shall pass to the Buyer upon delivery.
23
TITLE
Notwithstanding
the passing of risk under Condition 22, unless and until payment shall have been made to the
Company of all sums due to it under the Contract (including any delivery
charges) and/or, where the Buyer is not
a Consumer, under any other contract between the Buyer and the Company on
any account whatsoever:
23.1
property in and title to the Goods shall remain in the
Company; and
23.2
where the Buyer is
not a Consumer:
23.2.1
the Buyer shall store the Goods separately from all
other Goods and products and in such a way that they can be readily identified
as being the property of the Company; and
23.2.2
subject to Conditions 23.2.3 and 23.2.4 the Buyer shall be free to sell the Goods in the
ordinary course of its business on the basis that the proceeds of sale shall be
the property of the Company, and the Buyer shall account therefore to the
Company on demand; provided that the Buyer shall have no authority to enter
into any contract for sale on behalf of the Company and any contract for sale
shall accordingly be concluded in the name of the Buyer; and
23.2.3
the Company may at any time revoke the Buyer’s power
of sale referred to in Condition 23.2.2 by written notice to the Buyer if the Buyer shall for
seven days or more be in default in the payment of any sum whatsoever due to
the Company (whether in respect of the Goods or any other goods supplied by the
Company or services rendered, whether or not under the Contract, by the Company
or for any other reason whatsoever) or if any bill of exchange, cheque or other instrument drawn or accepted by the Buyer in favour of the Company shall on presentation for payment be
dishonored, or if the Company in good faith shall have doubts as to the
solvency of the Buyer; and
23.2.4
the Buyer’s power of sale referred to in Condition 23.2.2 above shall automatically cease if any receiver or
manager shall be appointed over any or all of the assets or undertaking of the
Buyer, or if any winding up order shall be made against the Buyer, or if the
Buyer shall go into voluntary liquidation (otherwise than for the purposes of,
and followed by, reconstruction or amalgamation) or call any meeting of or make
any arrangement or composition with creditors or commit any act or bankruptcy;
and
23.2.5
upon determination of the Buyer’s power of sale under Condition
23.2.3 or 23.2.4 above, the Buyer shall place the Goods at the
disposal of the Company and the Company shall be entitled, using only such
force as may be necessary, to enter upon any premises of the Buyer for the
purpose of removing the Goods from the premises; and
23.2.6
where payment may be made by means of any bill of
exchange, cheque or other negotiable instrument, the Company shall be deemed
not to have received payment for the purposes of this Condition 23.2 unless and until the bill of exchange, cheque or
other negotiable instrument shall have been honoured on presentation for
payment, notwithstanding that the Company may have negotiated it and received
value therefore.
24
RESALE OF THE GOODS by BUYERS WHO ARE NOT CONSUMERS
24.1
Where the Buyer is not a Consumer, and the Buyer resells the Goods it shall:
24.1.1
make clear, in
all dealings with customers and prospective customers, that it is acting as
principal in sales of the Goods and not as agent of the Company;
24.1.2
ensure that the
Goods and their marketing and sale comply with all manufacturing, sales,
marketing, labelling, packaging, storage, safety and other applicable legal
requirements and indemnify and keep indemnified the Company from and against
all costs, claims, demands, liabilities, expenses, damages or losses (including
without limitation any direct or indirect consequential losses, loss of profit
and loss of reputation, and all interest, penalties and legal and other
professional costs and expenses) incurred by the Company arising out of or in
connection with failure of the Goods and their marketing and sale so to comply; and
24.1.3
not do anything
which will harm the reputation of the Company and the Goods.
25
TERMINATION AND
SUSPENSION
Where the Buyer is not a Consumer, without
prejudice to any rights and remedies available to it, whether under the
Contract or otherwise, the Company shall be entitled, in its absolute
discretion and upon giving to the Buyer written notice of its intention to do
so, whether to terminate wholly or in part the Contract and/or any other
contract with the Buyer or to withhold performance of all or any of its
obligations under the Contract and/or any other contract in any one or more of
the following events:
25.1
if any sum owing to the Company from the Buyer on any
account whatsoever shall be unpaid after the due date for payment; or
25.2
if the Buyer shall refuse to take delivery of or
collect any of the Goods in accordance with the terms of the Contract; or
25.3
if the Buyer is
in material breach of an obligation under the Contract (other than as mentioned
in Condition 25.1) and in the case of any such breach capable of remedy
has failed to remedy the breach within a period of 30 days after receipt of
written notice to do so; or
25.4
if the Buyer, (i)
is unable to pay its debts as they fall due, (ii) passes a resolution for
winding up (other than for the purposes of a
solvent amalgamation or reconstruction) or if a court of competent
jurisdiction makes an order to that effect, (iii) enters into a composition or
scheme of arrangement with its creditors or if a receiver, manager,
administrator or administrative receiver is appointed over any of its assets,
(iv) ceases or threatens to cease to do business; or (v) an analogous event
occurs to the other party in any jurisdiction.
The
Company shall be entitled to exercise its rights of suspension hereunder at
anytime during which the event or default giving rise thereto shall not have
ceased or been remedied and in the event of any such suspension the Company
shall be entitled to require, as a condition of resuming performance under the
Contract, prepayment of or such security as it may stipulate for the payment of
any sum or sums due or to become due to it.
26
DEFECTIVE GOODS AND REFUNDS
26.1
The following sub-Conditions shall apply where the Buyer is not a Consumer:
26.1.1
The Company shall make good at its option by
reimbursement of the whole or part of the price (and, where relevant, as a
deduction from any part of the price remaining unpaid) or by repair or by
replacement any defect developing under normal use in the Goods and due solely
to faulty design, materials or workmanship (except where such design, materials
or workmanship were supplied by the Buyer or on behalf of the Buyer by a third
party), provided that:
(a)
written notice of any such defect shall be given to
the Company within twelve months after the Buyer shall have taken possession of
the Goods in question; and
(b)
any Goods alleged to be defective shall be promptly
made available to the Company (including where reasonably required by the
Company by return at the Buyer’s risk and expense to the Company for
inspection) and the Company shall in its reasonable opinion consider them to be
defective solely by reason of faulty design, materials and/or workmanship; and
(c)
no attempt shall have been made by the Buyer or by any
third party to remedy any defect before the Goods in question shall have been
returned to the Company for inspection; and
(d)
the Goods in question shall have been fitted, serviced
and maintained properly and in accordance with the Company’s and/or its
suppliers recommendations and specifications and shall not have been fitted
with any parts, components and/or accessories other
than those manufactured or recommended by the Company and/or its suppliers; and
(e)
where any such defect is due to a fault in any part,
component, accessory and/or other item of the Goods not manufactured by the
Company, the Buyer shall be entitled as against the Company, only to such
remedy as the Company may be able to obtain against the relevant manufacturer
or supplier; and
(f)
in default of any claim being made under this Condition
26.1.1 within the period of twelve months above referred to,
the Goods shall be deemed to comply with the Contract and to be in all respects
satisfactory.
(g)
The Company’s liability shall (subject to Conditions 15.1.5 and 26.1.2) be limited to reimbursement of the price or repair
or replacement of the Goods as aforesaid and shall be subject to compliance by
the Buyer with the terms of the foregoing part of this Condition 26.1.
26.1.2
Nothing in these Conditions of sale shall be construed
as attempting to exclude or restrict the liability of the Company to a consumer
as referred to in section 6(2) Unfair Contract Terms Act 1977.
26.2
The following sub-Conditions shall apply where the Buyer is a Consumer:
26.2.1
When the Buyer returns a Good to the Company (for
instance, because the Buyer has cancelled the Contract, or has notified the
Company in accordance with Condition 4.2 that the Buyer does not agree to
any change in these Conditions or in any of the Company policies, or because the
Buyer claims that the Good is defective), the Company will examine the returned
Good and will notify the Buyer of its entitlement to a refund via e-mail within
a reasonable period of time.
26.2.2
The Company will process any refund due to the Buyer within
30 days of the day the Company received the Buyer's cancellation. The Company aims to make refunds using the
same method as that used by the Buyer to pay for its purchase.
26.2.3
Refunds will be given on the following basis:
(a)
where the Buyer has validly returned a Good under its right
of cancellation described in Condition 16.2, the Company will refund the full amount paid by the
Buyer for the Good, including the cost of delivery to the Buyer. The Buyer will be responsible for returning
the Good to the Company at its own cost;
(b)
where the Buyer has validly returned a Good which is a
substitute good under its right of cancellation, the Company will refund the
full amount paid by the Buyer for the Good (including the cost of delivery to the
Buyer) and reimburse the reasonable cost incurred by the Buyer in returning the
Good;
(c)
where the Buyer validly returned a Good to the Company
because it is defective or for some other reason for which the Company is responsible,
the Company will refund the full amount paid by the Buyer for the Good
(including the cost of delivery to the Buyer) and reimburse the reasonable cost
incurred by the Buyer in returning the Good; and
(d)
where the Buyer has returned a Good in circumstances
other than Conditions 26.2.3(a) to 26.2.3(c) above (which includes rejecting a defective Good more
than a reasonable time after receipt), any refund will be at the Company's discretion. If the Company does agree to provide a
refund, the Company will not refund the cost of delivery to the Buyer and the
Company will not reimburse the cost incurred by the Buyer in returning the Good.
26.3
When returning Goods to the Company, for any reason, the
Buyer must take reasonable care to see that it is received by the Company and
not damaged in transit.
27
EMPLOYEES
Where the Buyer is not a Consumer, these Conditions
are stipulated by the Company on behalf of the Company and on behalf of all its
employees and agents and apply for their benefit as for that of the Company,
and the Buyer shall not sue or make any claim against any employee or agent of
the Company in respect of any alleged negligence and/or other default on the
part of the Company and/or any such person in relation to the Contract.
28
THIRD PARTY CLAIMS
Where the Buyer is not a Consumer, the
Buyer shall indemnify the Company in full against any liability whatsoever
(including any liability based on the negligence of the Company) which it may
incur resulting from any claim made against the Company by any third party,
including without limitation any employee or agent of the Buyer or any
subsequent buyer or hirer or other bailee of the Goods or any of them, arising
or arisen directly or indirectly out of the performance and/or any
nonperformance and/or breach of the Contract and/or otherwise out of or connected
with the manufacture and/or supply of the Goods or any of them or the provision
of any services.
29
INTELLECTUAL
PROPERTY RIGHTS
29.1
As between the
Company and the Buyer, all intellectual property in the Goods which subsists
now or at any time in the future shall without limitation vest in and be the
absolute property of the Company or its licensors.
29.2
Where
the Buyer is not a Consumer, the
Buyer shall forthwith notify the Company in writing of any claim made or action
brought against the Buyer for infringement of any intellectual property right
or rights or for unauthorised use of any confidential information or for
passing of by reason of the manufacture and/or sale of any Goods, and the
Company (or its nominee) or its licensors (as applicable) shall be free to
conduct any negotiations for the settlement of any such claim and/or to conduct
any litigation resulting therefrom without any obligation or responsibility
whatsoever to the Buyer other than where it is decided by a competent court of
law or agreed by the Company (or its nominee) or its licensors (as applicable)
in writing that there has been any such infringement or unauthorised use or
passing off, to give credit for the Goods giving rise to the claim or action or
at the option of the Company (or its nominee) or its licensors (as applicable),
and at its (or its nominee’s) or its licensor’s cost and expense to make such
alterations thereto as may be necessary to remedy the matter complained of. The
Buyer shall without cost to the Company (or its nominee) or its licensor (as
applicable) provide such facilities and assistance as the Company (or its
nominee) or its licensors (as applicable) may reasonably require – to enable it
to investigate and conduct any such claim or action. Where the Goods are
manufactured in accordance with a design or specification provided by, or on
behalf of the Buyer, and sold by the Company to the Buyer than, as regards any
such Goods, the Buyer shall indemnify the Company (and where appropriate its
supplier) against all actions, costs, claims, demands, damages, liabilities and
expenses whatsoever and howsoever arisen, together with interest and any VAT
thereon, in relation to any claim or action for infringement of any
intellectual property right or rights or for unauthorised use of any
confidential information or for passing off, whether actual or alleged.
30
COMPLIANCE WITH
REGULATIONS
Where the Buyer is not a Consumer, it
shall be the responsibility of the Buyer to ensure that all requirements
applicable to the Contract, whether statutory, regulatory, municipal and/or
otherwise howsoever, are duly complied with. It shall be a condition precedent
to the performance of the Company of its obligations under the Contract that
all necessary licences, permits and consents shall have been obtained by the
Buyer.
31
DATA PROTECTION
31.1
Each party warrants that it is properly notified under the Data
Protection Act 1998 to the extent required for the processing of personal data
(as defined in that Act) required in the performance of the Contract.
31.2
Where
applicable, the parties agree to comply with the relevant provisions of the
Data Protection Act 1998 and any directions issued by the Information
Commissioner in its processing of such personal data.
32
WRITTEN COMMUNICATIONS and notices
32.1
The parties will
mainly communicate with each other electronically, such as by email. Applicable laws may require that some of the
information or communications the Company sends to the Buyer should be in
writing, for which purpose the parties both agree that electronic communications
will suffice. This Condition does not
affect any of the Buyer's statutory rights.
32.2
All notices given
by either party to the other must be given in writing and delivered by hand,
post, fax or email. Notices to the
Company should be given in accordance with the details in Condition 5.1 above. Notices
to the Buyer may be given to the email address or the postal address provided
when the Buyer places its order.
33
FORCE MAJEURE
33.1
Neither party shall have any liability
whatsoever for any failure to perform, or for any delay in the performance of
any of its obligations under the Contract arising wholly or in part by reason
of any factor beyond its direct control, including without limitation shortage
of raw materials, components or services, act of God, War, National Emergency,
Laws or Regulations of any Country, Industrial Dispute, Civil Commotion, Fire,
Tempest and/or Flood.
33.2
Where the Buyer is
a Consumer, this Condition does not affect its statutory rights and in particular
the Company's obligation to perform the Contract within 30 days of order
as set out in Condition 9.2.
34
WAIVER
No
failure or delay on the part either party to exercise any of its rights under
the Contract shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof. Any
waiver by either party of any breach by the other party of any of its
obligations under the Contract shall not affect the rights of that party in the
event of any further or additional breach or breaches.
35
ASSIGNMENT ETC.
35.1
The Contract is personal to the Buyer, who shall not
transfer, assign, charge, sub-contract or in any way part with the Contract, or
any of the Buyer's benefit or burden thereof without the Company’s prior
written consent.
35.2
The Company may transfer, assign, charge, sub-contract
or otherwise dispose of the Contract, or any of its benefit or burden arising
under it, at any time during the term of the Contract.
36
ENTIRE AGREEMENT
The Contract constitutes the
entire agreement and understanding between the parties with respect to the
subject matter of the Contract, and supersedes and extinguishes any prior
drafts, agreements, undertakings, understandings, promises or conditions,
whether oral or written, express or implied between the parties relating to
such subject matter.
37
NO RELIANCE
Each party acknowledges to
the other that it has not been induced to enter into the Contract by nor has it
relied upon any representation, promise, assurance, warranty or undertaking
(whether in writing or not) by or on behalf of the other party or any other
person save for those contained in the Contract. Accordingly, each of the parties acknowledges
and agrees that the only remedy available to it in respect of the subject
matter of the Contract shall be for breach of contract under the terms of the
Contract. Nothing in the Contract shall exclude liability for fraud or
fraudulent misrepresentation.
38
SURVIVAL
Notwithstanding any provision
of the Contract to the contrary, the provisions of any Conditions which
expressly or impliedly survive expiry or termination of the Contract for any
reason whatsoever shall continue in full force and effect after expiry or
termination.
39
RIGHTS OF THIRD PARTIES
A person who is not a party
to the Contract has no rights under the Contracts (Rights of Third parties) Act
1999 to enforce, or to enjoy the benefit of, any provision of the Contract.
40
NO PARTNERSHIP/AGENCY
Nothing
in the Contract is intended to or shall operate to create a partnership or
joint venture of any kind between the parties, or to authorise either party to
act as agent for the other.
41
SEVERABILITY
Each and every
obligation contained in the Contract shall be treated as a separate obligation
and shall be severally enforceable as such notwithstanding the
non-enforceability of any other such obligation.
42
CLAUSE HEADINGS
The clause headings
in these Conditions are for convenience only and shall not in any way affect
the interpretation of the Contract.
43
GOVERNING LAW AND
JURISDICTION
The Contract and
any dispute or claim arising out of or in connection with it (including any
non-contractual claims or disputes) shall be governed by and construed in all
respects in accordance with English Law, and the Company and the Buyer shall,
in respect of all such disputes or claims, submit to the exclusive jurisdiction
of the English Courts.
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