TERMS AND CONDITIONS
These Terms and Conditions govern the supply of goods or services sold, the customer, and constitute the entire and only agreement between us in relation thereto.
All orders placed by you are on the basis of these Terms and Conditions and are subject to acceptance by us by delivery of the goods to you at which point a legally binding contract is constituted between us. The processing of your payment and acknowledgment of your order does not constitute legal acceptance of your order.
Your attention is in particular drawn to terms 4 and 9. If you are a consumer (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) we recognise that you may have additional rights under statute and confirm your statutory rights are not affected by these terms.
DEFINITIONS AND INTERPRETATIONS
1.1 In these terms “we” or “us” means Midsomer Norton & District Carnival Charity Association; “our” and “your” shall be construed accordingly and “contract” means any order which has been accepted by us.
1.2 References to any statutory provision shall include (i) any subordinate legislation made under it (ii) any provision which it has modified or re-enacted and (iii) any provision which subsequently supersedes it or re-enacts it.
APPLICATION OF TERMS
2.1 These terms apply to all sales of goods and/or services by us to the exclusion of all other terms (including any which you purport to apply) unless expressly agreed in writing in advance by one of our Directors.
2.2 Each order or acceptance of a quotation for goods and/or services by you shall be deemed to be an offer by you to buy goods and/or services subject to these terms. No order or acceptance of a quotation by you shall be deemed to be accepted by us until written confirmation of order is issued by us or (if earlier) we begin to process your order.
2.3 You acknowledge that you have not relied on any statement or representation made or given on our behalf. Any estimate of quantities needed, advice as to the suitability of any goods for a particular purpose and any plan or measurement given by us is given for guidance only (based on your information) and without liability on our part. No allowance is made by us for additional materials, wastage or installation. You must satisfy yourself that all goods and/or services ordered are correct.
2.4 Any typographical error or clerical omission in any sales literature, quotation, price list or other document issued by us may be corrected without liability on our part.
QUOTATIONS, ORDERS AND DESCRIPTION OF GOODS
3.1 The price specified on any quotation shall be based upon the costs applicable at the date of the quotation. If after the date of the quotation there shall be any increase or decrease in such costs then we may wish to review the prices quoted. All quotations will ordinarily remain valid for 7 days from the date of issue unless otherwise stated, however we shall be entitled to withdraw any quotation at any time (whether or not already accepted by you).
3.2 Our quotations are submitted on the assumption that arrangements for payment (including references as to creditworthiness) will prove satisfactory to us. Should this not prove to be the case and should any payment to us be overdue we reserve the right at any time to suspend or discontinue delivery of any goods and/or services.
3.3 The description of the goods and/or services are set out in our quotation or confirmation of order.
3.4 With regard to orders placed via our website, you are deemed to place an order with us by ordering via our online checkout process. As part of our checkout process you will be given the opportunity to check your order and to correct any errors. We will send you an order acknowledgement email, detailing the products you have ordered.
3.5 Our acceptance of an order placed via our website takes place when we despatch the order and we will send you a despatch confirmation by email. When we despatch the order the purchase contract will be made even if your payment has been processed immediately, unless we have notified you that we do not accept your order or you have cancelled your order.
3.6 We are not obliged to accept your order for goods and may decline it or limit the order quantity. We may refuse to accept an order where goods are not available; where we cannot obtain authorisation for your payment; at any time due to market conditions or if there has been a pricing or product description error.
3.7 Any samples submitted by us are from current production at the time of submission of such supplies. Due to variations in raw materials the materials eventually supplied may not necessarily conform to the original sample but we will supply material to conform to the relevant British or European standard specification where previously requested in writing by you.
3.8 All samples, drawings, descriptive matter, specifications and advertising are issued or published for the sole purpose of giving an approximate idea of the described goods. They shall not form part of the contract and this is not a sale by sample.
3.9 Where fine or special tolerances are required in the goods supplied beyond those generally accepted in the building and construction trades, no liability shall attach to us unless such tolerances are notified in writing to us at the time of order and we have acknowledged in writing that we are prepared to accept such order.
DELIVERY OF GOODS
4.1 Delivery shall occur when you take possession of the goods at our premises or, where we agree to deliver, when the goods are ready for unloading at the delivery address. When placing an order for an item via our website, please refer to the delivery options set out on our website and these terms and conditions to ensure that we can deliver to your address. You must do all that you reasonably can to enable delivery to take place at the given time and place. If you delay delivery, or delivery fails because you have not taken appropriate steps, either we or our haulier will try to arrange for an alternative delivery date within several days of the failed delivery. If delivery fails as a result of circumstances within your reasonable control, the cost of any re-delivery shall be borne by you. If we are unable to arrange a date for re-delivery we may cancel your order and refund to you the price that you have paid for the goods, less the failed delivery costs.
4.2 All quotations where delivered prices are quoted are based upon safe and easy access for our vehicles for delivery and collection of materials and goods. In the event that in our opinion such access is not available or in the event that in our opinion any road or ground over which our vehicles would have to travel is unsuitable, we reserve the right to refuse to so deliver or collect. Further, should we incur extra costs in making a delivery by reason of an unsatisfactory access or an unsuitable road or ground for our vehicles we shall be entitled to recover these extra costs from you as an increase to our quoted price or prices.
4.3 Where delivered prices are quoted, this shall mean delivery to site or depot only, the cost of unloading and the responsibility for any loss or damage occasioned thereby, shall rest entirely with you.
4.4 Any dates and times we specify for delivery of the goods are an estimate. We shall not be liable to you if we do not deliver on or at any particular date or time. Time for delivery shall not be made of the essence by notice.
4.5 Our prices only cover delivery or collection on normal working days during normal working hours. Additional costs arising through deliveries made on Public Holidays, weekends or at any time outside normal working hours or in the event that discharge is not completed within one hour will be charged for by us and paid for by you in addition to our quoted price or prices.
4.6 If you fail to accept delivery of any goods when they are ready for delivery, or we are unable to deliver the goods because you have not provided appropriate instructions, documents or consents, we shall be entitled to immediate full payment and risk in the goods shall pass to you. We may store such goods until delivery and you shall be liable for all related costs and expenses.
4.7 We will deliver to site provided that there is a suitable road to the point where delivery is requested. If no such road exists, delivery will be made to the nearest point at which, in the driver’s opinion, the vehicle can safely and lawfully unload. Except where we use a vehicle-mounted crane/fork truck, you shall be responsible for unloading the goods and shall provide all necessary labour and equipment. We may charge you an additional fee if you delay in taking delivery of the goods when tendered.
4.8 We shall not be liable for any shortages in quantity delivered unless you give written notice to us of such shortages within two working days of delivery. In any event our liability shall be limited to making good the shortfall or (at our option) issuing a credit note or refund at the pro rata contract rate against any invoice raised for such goods.
4.9 We may deliver the goods by separate instalments. Each instalment shall be a separate contract and cancellation or termination of one instalment shall not entitle you to cancel any other instalment.
4.10 Any query about delivery shall be made within two days of the date when the goods would in the ordinary course of events have been delivered else the goods shall be deemed to have been delivered in accordance with the contract.
4.11 We shall not be responsible for taking back any non-chargeable packaging/pallets.
RISK AND OWNERSHIP OF GOODS
5.1 The goods are at your risk from the time of delivery or deemed delivery.
5.2 Ownership of the goods shall not pass to you until we have received in full (in cleared funds) all sums due to us in respect of the goods and all other sums which are or become due to us from you on any account.
5.3 Until ownership of the goods has passed to you, you shall hold the goods on a fiduciary basis as our bailee and store the goods (at no cost to us) in satisfactory condition and in such a way that they remain readily identifiable as our property and you shall tell us immediately where the goods are situated.
5.4 Subject to 5.5, you may resell the goods before ownership has passed to you provided that any sale shall be effected in the ordinary course of your business at full market value and you shall deal as principal; you shall hold all proceeds of sale on trust for us and assign to us all rights and claims which you may have against your customer arising from such sales until full payment is made.
5.5 Your right to possession of, and authority to sell, the goods shall terminate immediately (and you shall immediately deliver the goods to us at your cost and risk) if we notify you to such effect or on the happening of any event set out in 10.3(a)-(i) (whichever is earlier) and you shall immediately notify us in writing upon the happening of any such event.
5.6 You grant to us and our agents an irrevocable licence at any time to enter any premises (with and without vehicles) where the goods are or may be stored in order to inspect them or, where your right to possession has terminated, to recover them.
5.7 Where we are unable to determine whether any goods are the goods in respect of which your right to possession has terminated, you shall be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.
PROVISION OF SERVICES
6.1 Where the goods supplied include services by us, our agents or subcontractors, you shall (where necessary) allow us safe and reasonable access to the site within our normal working hours to carry out the services.
6.2 The price quoted for such services assumes that: (a) the site is ready and suitable for the services to commence at the agreed time; (b) the services are to be carried out within our normal working hours; (c) suitable site access is available at all times; and (d) adequate mechanical lifting equipment is provided by you in the event that the services are to be carried out above ground level. If any of these assumptions proves incorrect, we shall be entitled to vary the price.
6.3 You shall provide a safe environment and all necessary consents, information, and resources for us, our agents and subcontractors to carry out the services.
6.4 In relation to any installation services, you are responsible for insuring the goods (whether before or after installation) and shall notify your insurers that we will be carrying out such services on site. You must take steps to ensure all adjacent surfaces and items are properly protected from damage during the works.
6.5 Any dates and times we specify for commencement and completion of the services are an estimate. We shall not be liable if we do not carry out the services on or at any particular date or time. Time for performance shall not be made of the essence by notice.
6.6 If we provide design services, all copyright and other intellectual property rights created, developed or used shall remain the sole property of us or our licensors.
PRICE AND ADDITIONAL CHARGES
7.1 With respect only to orders placed via our website, the price payable for the goods you order is as set out on our website at the time you place your order plus any charges for delivery as advised to you on our website. Occasionally an error may occur and goods may be incorrectly priced in which circumstances we will not be obliged to supply the goods at the incorrect price. Occasionally, we advertise goods at a promotional price; you must quote the relevant promotion code at the time of ordering, otherwise, you will be charged the full price.
7.2 With respect to all other orders, unless we otherwise agree in writing the price payable for the goods and/or services shall be the price applicable on the date of delivery or deemed delivery for goods and the date the services are carried out for services. On occasion, the prices payable for goods advertised on our website may differ from those prices offered to you in written quotations, and we are under no obligation to honor any web site price if there is such a difference.
7.3 Unless stated otherwise in writing, the price for the goods and/or services shall be exclusive of any value added tax, which shall be payable by you at the rate applicable at the tax point.
7.4 We may at any time after acceptance of an order, but prior to delivery, revise the price payable for the goods and/or services to take account of increases in costs including, without limitation, costs of any goods or materials, carriage, labour or overheads, the increase or imposition of any tax duty or other levy and variation in exchange rate. However where we wish to revise the price payable we will confirm the revised price with you before we proceed to despatch your order.
7.5 Unless our written quotation states otherwise, in addition to any prices quoted we will also charge you the cost of delivering the goods to you.
PAYMENT AND INTEREST
8.1 Payment for goods and/or services supplied on a credit account shall be due not later than 30 days after the date of delivery or deemed delivery of the goods and/or services. If you default in making payment, the entire balance of your account shall be payable immediately and we may charge interest, together with costs and expenses, in accordance with 8.4.
8.2 For non-credit account purchases, payment shall be with the order or, at our discretion, on delivery or deemed delivery.
8.3 Time for payment shall be of the essence. You shall make all payments in the stated currency of our invoice to you (which shall be in accordance with our relevant quotation to you), in full without any deduction.
8.4 If you fail to pay us any sum due (and whether or not any part of your account is subject to query), we may, in addition to our rights under 10.3, appropriate any payment made by you to such of the goods and/or services (or such goods or services supplied under any other contract between you and us) as we may think fit; and you shall be liable to pay us interest on such sum at the annual rate of 4% above the base lending rate from time to time of Lloyds TSB Bank plc, accruing on a daily basis from the due date for payment until payment is made in full, whether before or after any judgment, together with all costs and expenses incurred by us in recovering sums due or exercising our rights under this provision.
9.1 If any goods or services are defective due to defective workmanship or material, we shall (at our option) repair or replace such goods (or the defective part) or rectify the defective service or refund the price of such defective goods or services at the pro rata contract rate provided that: (a) you give us written notice of the defect within seven days of the date of delivery or completion of the services or, in the case of a defect which is not discoverable upon reasonable examination, within seven days of the time when you discover or ought to have discovered the defect (and in any event within twelve months from the date of delivery or completion of the services); (b) we are given a reasonable opportunity after receiving notice to examine such goods and/or services and (if asked to do so by us) you return such goods to our place of business for the examination to take place there; (c) you do not make any further use of such goods after giving such notice; (d) the defect is not due to wilful damage, negligence (other than ours), fair wear and tear, alteration or repair of such goods without our prior written consent or incorrect storage, application, movement, installation, commissioning, use or maintenance of the goods (other than by us); and (e) the defect is not due to any act or omission of you, your agents or contractors.
9.2 Our entire liability for defective goods and services is set out in 9.1 and in particular we shall not be responsible for either the cost of removing the goods from any place where they are installed or fixed (or making good the place after removal) or for the cost of installing or fixing any repaired or replacement goods unless due to our defective service.
9.3 Save as expressly set out in these terms, all warranties and other terms implied by statute or common law (save for the term implied as to title) are, to the fullest extent permitted by law, excluded from the contract.
9.4 Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to the contract price between us.
9.5 We shall not be liable to you for any pure economic loss, loss of profit, loss of business, depletion of goodwill or loss of anticipated savings, in each case whether direct, indirect or consequential, or any other indirect losses whatsoever and howsoever caused.
9.6 Nothing in these terms excludes or limits our liability for (a) death or personal injury caused by our negligence, (b) fraud or fraudulent misrepresentation; and (c) any other matter which it would be illegal for us to exclude.
9.7 Where goods are manufactured in compliance with any designs, specifications or drawings supplied by you or your customer, you shall indemnify us against all proceedings, costs, claims, losses or demands in respect of any infringement or alleged infringement of any intellectual property rights whatsoever of third parties in any part of the world.
CANCELLATIONS AND RETURNS
10.1 Where you are a “consumer” under a “distance contract” (both as defined in the Consumer Protection (Distance Selling) Regulations 2000) you may cancel a contract within seven working days after the date the goods are delivered. You must return the goods to our Stalbridge site or request us to collect the goods, at your cost. This term shall not apply to any goods specially obtained or made for you or which are liable to deteriorate or expire rapidly. This right for consumers to return goods within seven working days shall not apply where the goods have been damaged by you or are not in their original state. The provisions of this clause 10.1 do not affect your statutory rights.
10.2 We may, at our discretion, accept or reject the cancellation of any contract or the return of any goods not required. No cancellation of any order for supply can be accepted unless such cancellation is received in writing by us in time to prevent the order being batched, mixed or loaded. Any such cancellation or return shall be on such terms as we specify and in particular we may charge you a handling fee.
10.3 We shall be entitled to cancel or suspend a contract if you fail to pay us any sum due pursuant to the contract (whether or not any part of your account is subject to query) or any of the following events occurs or we believe is likely to occur: (a) you have a bankruptcy order made against you or make an arrangement or composition with your creditors, or otherwise take a benefit for the relief of insolvent debtors; or (b) you convene a meeting of creditors or enter into liquidation; or (c) you have a receiver and/or manager, administrator or administrative receiver appointed over your undertakings or any part; or (d) a resolution is passed or a petition presented to any court for your winding-up or for the granting of an administration order in your respect, or any proceedings are commenced relating to your insolvency or possible insolvency; or (e) you suffer or allow any execution, whether legal or equitable, to be levied on your property or obtained against you, or (f) you are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or you cease to trade; or (g) any event similar to the above occurs; or (h) you fail to observe or perform any of your obligations under the contract or any other contract between us and you; or (i) you encumber or in any way charge any of the goods.
HEALTH AND SAFETY
11 Certain goods supplied by us could, if incorrectly used, give rise to risks to health and safety. Information in respect of such products is available from us. You undertake that you will ensure compliance by your employees, agents and customers with any instructions given by us or the manufacturer or our supplier and will take any other steps or precautions, having regard to the nature of the goods, as are necessary to preserve the health and safety of any person handling, using or disposing of them.
12 You will be responsible for the disposal of any waste arising from the goods and will comply with all applicable laws, regulations and waste management licences relating to such waste, including the appropriate disposal by you of any goods marked with a crossed out wheelie bin symbol, save where you are a consumer and it is our responsibility at law. You will indemnify us against all costs, claims, liabilities and expenses arising from any breach by you of this provision.
13 We may defer the date of delivery, cancel the contract or reduce the volume of the goods and/or services ordered by you (without liability to you) if we are unable to deliver or supply due to any cause beyond our reasonable control (including the acts or omissions of our suppliers and subcontractors).
14.1 Any notices given pursuant to or in relation to the contract shall be in writing and addressed to the party concerned at its principal place of business or last known address. Any notice shall be deemed delivered two days after posting or on the next working day after fax transmission.
14.2 Any provision of the contract found to be invalid or unenforceable shall, to such extent, be deemed severable and the remaining provisions of the contract shall continue in full force and effect.
14.3 Failure or delay by us in enforcing any contract term shall not be construed as a waiver of any of our rights under the contract.
14.4 You shall not be entitled to assign or subcontract any of your rights or obligations under the contract.
14.5 No person who is not a party to the contract shall have a right to enforce any term of the contract which expressly or by implication confers a benefit on that person.
14.6 Any dispute or claim arising in connection with the contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts, save that if you are domiciled in Scotland (within the meaning of the Civil Jurisdiction and Judgments Act 1982) then the contract shall be construed in accordance with Scottish law and shall be subject to the exclusive jurisdiction of the Scottish courts.
15.1 Unless otherwise stated, the copyright and other intellectual property rights in all material on our Website and/or product literature, method statements, application guides and videos (including without limitation photographs and graphical images) (our “marketing materials”) are owned by us or our licensors. For the purposes of these terms and conditions, any use of extracts from our Website and marketing materials is prohibited. If you breach any of the terms in these terms and conditions, your permission to use our Website and marketing materials automatically terminates and you must immediately destroy any downloaded or printed extracts from our Website and/or marketing materials.
15.2 No part of our Website or marketing materials may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without our prior written permission.
15.3 Any rights not expressly granted in these terms are reserved.