Rob McAlister Ltd – trading as ‘Umbrella Heaven’ – Standard Terms and Conditions
(Your statutory customer rights are not affected)
The term ‘Seller’ refers to Rob McAlister Ltd, Unit 15 H, Hackworth Ind Park, Shildon, Co Durham, DL4 1HF, United Kingdom, regardless of trade names used. Note: Rob McAlister Ltd trades under various trade identities including Umbrella Heaven, Splash Innovations, Cave Innovations, PinPod and others. The term ‘Customer’ or “Buyer” refers to the person or company to whom this document is addressed.
“Working Day” means any day other than a Saturday, Sunday, public or bank holiday;
“the Customer” or “the Buyer” means the person who accepts a quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
“the Contract” means the contract for the purchase and sale of the Goods under these conditions;
“these Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
“the Delivery Date” means the date on which the Goods are to be delivered as stipulated in the Buyer’s order and accepted by the Seller;
“the Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions;
“month” means a calendar month;
“the Seller” means Rob McAlister Ltd, a company registered in England under company registration number 5479643;
“writing” includes any communications effected by telex, facsimile transmission, electronic mail or any comparable means;
“the Client Content” shall mean all artwork, images, writing, photographs or other copy, artwork or designs supplied by the Buyer to be used in connection with the Goods
These terms and conditions are applicable to the supply of products procured, manufactured or sold by the Seller to the Customer with reference to the aforementioned definitions.
These Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer. Any concession made or latitude allowed by the Seller to the Buyer shall not affect the strict rights of the Seller under the Contract.
No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
Any purchase of goods from the website www.umbrellaheaven.com requires the Buyer to consult and accept these terms and conditions. The click validating the order implies full acceptance of these terms and represents the Buyer’s “digital signature”
Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
The headings in these Conditions are for convenience only and shall not affect their interpretation.
The Seller’s employees or agents or distributors are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2. Price & Basis of Sale
2.1 All prices are quoted in Pounds Sterling, Euro and US Dollars and where displayed on consumer oriented websites are inclusive of VAT where applicable unless otherwise specified.
2.2 All prices are exclusive of postage and packing, unless otherwise stated.
2.3 Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Buyer may not be withdrawn cancelled or altered prior to acceptance by the Seller or has accepted an order placed by the Buyer by whichever is the earlier of:-
2.3.1 the Seller’s written acceptance;
2.3.2 delivery of the Goods; or
2.3.3 the Seller’s invoice.
2.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.5 The price of the Goods shall be the price listed in Rob McAlister Ltd (or trading name of Rob McAlister Ltd) published price list or featured on a web site of Rob McAlister Ltd current at the date of acceptance of the Buyer’s order or such other price as may be agreed in writing by the Seller and the Buyer.
2.6 Where the Seller has quoted a price for the Goods other than in accordance with the Seller’s published price list the price quoted shall be valid for 30 days only or such lesser time as the Seller may specify.
2.7 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
2.8 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are subject to the Seller’s charges for packaging and transport.
3.1 Payment must be made in Pounds Sterling only, unless otherwise specified, and by one of the following payment methods:
Cheque – by prior agreement and payable to Rob McAlister Ltd,
Major debit/credit cards as listed (e.g. Mastercard, Switch/Solo, Visa, VisaElectron, Eurocard, American Express),
Bank Transfer (customer to incur all derived charges from both their own bank and ours). Available by prior arrangement only.
Details for Bank Transfer:
Account Name: Rob McAlister Ltd
Address: HSBC, 48 High St, Leighton Buzzard, Beds, LU7 1EE, United Kingdom.
Sort code: 402812
Account No: 01442090
UmbrellaHeaven and Umbrella Heaven are trading names of Rob McAlister Ltd.
Please note that transactions will appear on the Buyer’s statement under the name of Rob McAlister Ltd.
3.2 Unless otherwise agreed payment must be made with and at the time of customer order. Credit terms are by prior agreement only.
3.3 Interest will be added to amounts outstanding at two per cent per annum above HSBC plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
3.4 The Buyer shall pay the price of the Goods (less any discount or credit allowed by the Seller, but without any other deduction credit or set off) on the date that the order is placed by the Buyer or the date of the Seller’s invoice (whichever occurs the sooner) or otherwise in accordance with such credit term as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time for the payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
3.5 Where the Seller agrees to provide credit to the Buyer, the Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller; if at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
4. Passing of property
4.1 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
4.2 Until such time as the property in the Goods passes to the Buyer:-
4.2.1 the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property;
4.2.2 the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and in the case of tangible proceeds, properly stored, protected and insured; and
4.2.3 provided the Goods are still in existence and have not been resold, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
4.3 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
5. Passing of risk
5.1 Risk of damage to or loss of the Goods shall pass to the Buyer at:-
5.1.1 in the case of Goods to be collected at the Seller’s premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or
5.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
6.1 Delivery date:
The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller. The Goods may be delivered by the Seller in advance of the Delivery Date. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled to store or arrange for the storage of the Goods and then risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.
Any date or period for delivery shall be considered as indicative only, although it is the Seller’s policy to try to fulfil all orders within 3 working days for stocked goods. For Make To Order goods, delivery will be as per date agreed (also to be considered as indicative only). For printed / promotional products delivery is normally 2 – 3 weeks for UK printing and 12 – 16 weeks for goods manufactured and / or printed and / or finished in the Far East. Orders for products that are not readily available for immediate sale, will not be accepted unless agreed to by the Customer. In such a case, Rob McAlister Ltd will agree a delivery schedule, which shall also be considered as indicative only. Said products will be sent to Customer as soon as possible, when received from the manufacturer. Rob McAlister Ltd accepts no liability or responsibility for delays in the delivery caused by the manufacturer, or any other third party.
6.2 Shipping for UK destinations (Standard parcel service)
All products shipped to a UK destination (with the exception of the Channel Islands – refer to clause 6.4), will be sent via standard parcel delivery service unless otherwise specified. The carrier aims to deliver orders within 1-3 working days. It is the responsibility of the customer to seek compensation from the carrier in the event of loss or damage. Rob McAlister Ltd will provide the customer with the postage details to facilitate this. Extra cover is available but should be requested by the customer at the time of order. Should the customer request extra cover, he/she will be charged in accordance with the carriers current service price.
6.3 Shipping for UK destinations (Express delivery service)
An expedited parcel delivery service is available upon request to UK mainland destinations (with the exception of the Channel Islands – refer to clause 6.4) and some parts of the Scottish Highlands. Detailed coverage information is available upon request from Rob McAlister Ltd’s Customer Service team (Telephone +44 (0)1525 382938). This service normally takes between 1 and 2 working days. Although every effort will be taken to meet the stated delivery target, this service is not guaranteed and Rob McAlister Ltd accepts no responsibility for late delivery. This service is offered on the basis that deliveries will generally only be attempted between Monday 8 am and Friday 5 pm. Please note that there are no evening or weekend deliveries unless previously arranged with Rob McAlister Ltd. Orders received over the weekend or on weekdays after 2 pm GMT that have requested this service, will be treated as having been placed at the commencement of the following working day (defined as being Monday 8 am to Friday 4 pm – excluding Public and Bank Holidays).
6.4 Shipping for non-UK destinations
All products shipped to non-UK destinations (including Channel Islands) will be despatched via an approved carrier. The service generally aims to deliver to mainland Europe within one to two working days, rolling out to as much as three to five days for more distant worldwide destinations. Note: these transit times are guidelines and not guaranteed. Prices are weight and volume dependent. If customers wish to track their parcel, they may do so by phoning +44 (0)1525 382938 or emailing firstname.lastname@example.org quoting their order number. They will be given a reference number to facilitate their request. Non-UK deliveries may incur a customs duty import charge. In the event that customs duty, import tax and / or handling or clearance or other such administrative charges are imposed, the Customer is wholly responsible for paying all such charges.
6.5 Non-delivered parcels
Rob McAlister Ltd’s nominated courier service has a delivery policy of attempting delivery twice whereupon they will leave a card instructing the Customer to either arrange a re-delivery or pick up the parcel from their nearest depot or collection point. If the Customer does not collect the parcel or arrange a re-delivery, the parcel will be returned to Rob McAlister Ltd. Any charges incurred by Rob McAlister Ltd will be passed to the Customer and required to be settled before the parcel is re-despatched. The Customer will also be liable for the cost of the re-delivery
6.6 Free Shipping
Where an order is either designated as ‘Free Shipping’ or selected by the customer as ‘Free Shipping’, Rob McAlister Ltd will choose an appropriate and available shipping method whereupon the relevant shipping policy will apply as defined in these terms and conditions.
The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be. Where the Goods cannot be examined the carriers note or such other note as appropriate shall be marked “not examined”. The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the terms of this clause are not complied with and, in any event will be under no liability if a written complaint is not delivered to the Seller within 5 days of delivery detailing the alleged damage or shortage. (This does not however affect the customer’s statutory rights). If no notification of rejection has been received after the aforementioned 5 day period, Rob McAlister Ltd shall consider the goods to be of satisfactory quality and fit for their purpose, and may decline rejection thereafter. In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer. Except in the case of custom manufactured orders, third party manufactured orders or printed umbrella orders which are subject to a 5% under or over variance on the ordered quantity (see condition 7.1), the Seller may choose to re-credit or refund the Buyer or shall make good any shortage in the Goods and where appropriate replace any goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage. For all types of order the Seller shall not be liable for any other consequential losses of any sort whatsoever.
7.1 Custom manufactured, third party manufactured and/or printed umbrellas
7.1.1 Due to production variability in the process of umbrella manufacturing and printing, when fulfilling orders for custom manufactured, third party manufactured and/or printed umbrellas the Seller reserves the right to under or over ship by up to 5% of the total order quantity. It is exceptionally rare that this happens but in such circumstances the Seller will issue a credit note and amend any invoices accordingly.
7.1.2 When the Seller provides to the Buyer a digital visual proof this is done so on the strict understanding by the Buyer that this proof is a positional guide only, providing an approximation of the placement and general colour scheme of the Buyer’s art (Client Content) relative to the size and appearance of the requested umbrella (or other item). The visual proof provided by the Seller is intended only as an approximation and not as an exact representation. The image shown on the visual proof may differ from the appearance of the eventual product actually produced. Whilst the Seller makes every effort to closely match the Buyer’s colour reference, whether Pantone, PMS, CMYK or other reference type used, the Seller does not guarantee an exact match. Depending on the method of manufacture, the printed artwork or logo may follow the natural curve of the canopy and bow slightly. For all-over canopy designs or where the print flows across two or more panels, the Buyer accepts that there may be a misalignment of up to 5 mm per panel as each canopy is sewn together by hand. Unless the Buyer chooses to purchase a pre-production printed sample then any order placed for printed umbrellas is done so on the strict understanding and agreement that whilst the Seller shall make every effort to interpret and fulfil the Buyer’s request, the Buyer accepts all risk in any variation or discrepancy.
7.1.3 When the Seller contracts with the Buyer to provide printed or custom manufactured umbrellas (or other products), the Buyer guarantees that it owns or has the necessary licenses in place in connection with all Client Content and that it shall not require the Seller to work with any Client Content which it does not own or is not licensed to use. The Buyer shall indemnify the Seller against all costs, claims, losses, expenses and damages incurred by the Seller or for which it may be liable due to or arising directly or indirectly out of any infringement or alleged infringement of any confidential information, copyright, design right, trade mark or other intellectual property right occasioned by the preparation, importation, manufacture, sale or supply of Services and/or Goods which include or incorporate any Client Content and/or have been made to the specification or special requirement of the Buyer.
7.1.4 When the Seller contracts with the Buyer to provide printed or custom manufactured umbrellas (or other products) an estimate may be given by the Seller once the Buyer has provided the Seller with sufficient information to prepare this. The Buyer may then instruct the Seller to proceed with the supply of Goods and Services and the Buyers instructions to the Seller to proceed to supply Goods and/or Services shall be deemed acceptance of these terms and conditions. If the Buyer fails to instruct the Seller to proceed within 60 days of any estimate, quote or proposal it shall be automatically deemed withdrawn by the Seller unless the Seller agrees otherwise in writing.
7.1.5 If possible the Seller will use reasonable endeavours to accommodate any request by the Buyer to vary the Goods and/or Services and if the Seller gives written notice to the Buyer agreeing to perform a variation to the design brief, Goods or Services already agreed between the parties, this Agreement shall be deemed automatically to have been amended so as to include the variation.
7.1.6 The Seller reserves the right to charge the Buyer such additional amounts as required if the Buyer requests any alterations and/or additions to the Design Brief, Specification or Services and the Seller, if it agrees to make such alterations and/or additions, shall do so at its convenience and the Buyer acknowledges that the Seller may not have the time or resources to undertake such changes immediately and any such requests by the Buyer may delay delivery.
7.1.7 Any time estimated for delivery shall be dependent on the size, content of design and accuracy and completeness of information and Client Content supplied by the Buyer. Any period for delivery shall be calculated from the time of the Seller’s acceptance of the Buyer’s order or from the Seller’s receipt of all information necessary to enable the Seller to proceed with the supply of Goods and Services (whichever shall be the later).
7.1.8 The Buyer agrees it is fully responsible for provision of all Client Content including but not limited to any artwork or any photographs which must be supplied in fully editable Illustrator .eps, .ai or hi-res .pdf files with any fonts converted to “outline”.
7.1.9 If the Seller’s costs incurred in respect of the Goods and Services increase due to the following circumstances the Seller may at its option at any time before delivery give notice to the Buyer of an increase in the Agreement price under this Condition due to:-
i) Variation and/or alteration of instructions and/or details and/or a failure by the Buyer or its representative to provide the same;
ii) Overtime costs incurred if the delivery date does not permit sufficient time for the work to be completed during normal working hours, i.e. 9 am – 5 pm Monday – Friday.
8. Return procedure
8.1 If the goods are to be rejected in the time limit set in clause 7 above, the Customer shall comply with the return procedure as defined in clause 8.2, below. Rob McAlister Ltd will reject returned goods that are unsolicited from Customers that have not complied with the procedure set in clause 8.2 below.
8.2 Goods that are rejected by the Customer must be returned in a saleable condition, unless faulty. The Customer must fill in a Return Authorisation Request Form with details of the rejection and supply the requested contact details. If it is agreed by the Seller that the goods should be returned, the Customer will be issued with a Return Authorisation Number (RAN). The RAN must be clearly displayed on the returned goods and posted to: Rob McAlister Ltd, Unit 15 H, Hackworth Ind Park, Shildon, Co Durham, DL4 1HF, United Kingdom. The goods should arrive with Rob McAlister Ltd no later than 7 working days following the issuing of a RAN. When Rob McAlister Ltd has received the returned goods and validated the nature of the return Rob McAlister will then issue a replacement or refund the customer. The Customer will be entitled to reasonable postage compensation if the goods are deemed to be faulty. In the absence of a clear written instruction for a refund, Rob McAlister Ltd will default to a product replacement. All costs associated with returning goods to Rob McAlister Ltd, including shipping cost, any customs duties and taxes, handling fees or import clearance fees must be paid by the customer.
9.1 Cancellations are only accepted if the Customer complies with the following cancellation procedure and before the order has been dispatched (or in the case of printed or Make To Order goods, before the Works Order has been issued). If the order has been dispatched or Works Order issued prior to the cancellation, the return procedure as defined in clause 8 above will apply. If the procedure is not respected, the order will be considered valid and the Customer will remain liable for the full payment.
9.2 Cancellations can be made with Rob McAlister Ltd by phoning +44 (0)1525 382938 and requesting for the order to be cancelled. Customers may be provided with a Cancellation Reference Number (CRN). Alternatively customers may email their cancellation request to Rob McAlister Ltd at email@example.com. For any order cancellation to be deemed as accepted and valid the Customer must obtain either a Cancellation Reference Number (CRN) or written acknowledgement of acceptance of the cancellation from Rob McAlister Ltd.
10. Copyrights and Other Intellectual Property
Except where otherwise expressly noted, all contents of Rob McAlister Ltd owned literature or websites, are the sole and exclusive property of Rob McAlister Ltd. The re-sale and/or re-labelling of any product sold by Rob McAlister Ltd is expressly forbidden unless agreed in writing with Rob McAlister Ltd. Rob McAlister Limited may, at any time, make modifications, changes, and alterations to the contents of its literature and websites, including these Terms and Conditions, without prior notice.
11. Law and jurisdiction
These terms and conditions are governed and shall be interpreted in accordance with English law. Buyer and Seller agree to submit to the exclusive jurisdiction of the English courts.
12. Product Descriptions
In accordance with a programme of continuous product development and improvement, the Seller reserves the right to change features and specifications without prior notice. Whilst the Seller always tries to ensure product descriptions and photographs are accurate representations of the products, there may sometimes be variations in dimensions and colours due to the manufacturing process. In addition the Seller cannot guarantee the images displayed on customers’ computers are accurate representations of the product, particularly the colours, as these can be affected by the customers’ screen, display settings and viewing angle.
Products described as “Value”, “Budget”, “Super Budget” or other similar description are sold on the understanding that the Customer fully accepts there are limitations to the design and quality of such products and that no claim shall be accepted by Rob McAlister Ltd in respect thereof. They will generally have been designed and manufactured with cost minimisation as a major consideration. Consequently limitations include for example that an umbrella described as a “Value” or “Budget” umbrella may not have a windproof frame or that moulded resin wood-effect handles may be prone to minor blemishes, scratches or chips.
13. Orders and Specifications
13.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless accompanied by written order or official written instruction to proceed.
13.2 The specification for the Goods shall be those set out in the Seller’s sales documentation unless varied expressly in the Buyer’s order (if accepted by the Seller). The Goods will only be supplied in the minimum units (or multiples) stated in the Seller’s price list or in multiples of the sales outer as specified. Orders received for quantities other than these will be adjusted accordingly. Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
13.3 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
13.4 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
13.5 The Seller shall not be liable for problems caused by any inaccuracies in any Client Content, information, request or materials or specification supplied by or on behalf of the Buyer or due to any failure by or on behalf of the Buyer to make any particular request or specification or to provide instructions or Client Content to the Seller.
14.1 The Seller may assign the Contract or any part of it to any person, firm or company.
14.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
15. Defective Goods
15.1 If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery “condition and contents unknown” the Buyer gives written notice of such defect to the Seller within three business days of such delivery, the Seller shall at its option:-
15.1.1 replace the defective Goods within 90 days or as mutually agreed of receiving the Buyer’s notice; or
15.1.2 refund to the Buyer the price for the goods which are defective; but the Seller shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice give by the Buyer as aforesaid.
15.2 No Goods may be returned to the Seller without the prior agreement in writing of the Seller. Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Seller’s sole discretion the Seller shall refund or credit to the Buyer the price of such defective Goods but the Seller shall have no further liability to the Buyer.
15.3 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Seller’s approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
15.4 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
15.5 Where the Goods are sold under a consumer sale the statutory rights of the Buyer are not affected by these Conditions.
15.6 Except in respect of death or personal injury caused by the Seller’s negligence, or as expressly provided in these Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
15.7 For the avoidance of doubt damage caused by wind or storm shall not constitute a faulty item and goods damaged by wind or storm or due the negligence of the Buyer or any third party shall be non returnable.
16. Buyer’s Default
16.1 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:-
16.1.1 cancel the order or suspend any further deliveries to the Buyer;
16.1.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
16.1.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of two per cent per annum above HSBC plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
16.2 This condition applies if:-
16.2.1 the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or
16.2.2 the Buyer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
16.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
16.2.4 the Buyer ceases, or threatens to cease, to carry on business; or
16.2.5 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
16.3 If Condition 16.2 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
17. Limitation of Liability
17.1 Subject to condition 6 and condition 16, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
17.1.1 any breach of these conditions;
17.1.2 any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
17.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
17.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
17.3 Nothing in these conditions excludes or limits the liability of the Seller:
17.3.1 for death or personal injury caused by the Seller’s negligence; or
17.3.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
17.3.3 for fraud or fraudulent misrepresentation.
17.4 Subject to condition 17.2 and condition 17.3:
17.4.1 the Seller’s 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; and
17.4.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
18. Confidentiality, Publications and Endorsements
18.1 The Buyer undertakes to the Seller that:-
18.1.1 the Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller’s prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer’s default;
18.1.2 the Buyer will not use or authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises note paper visiting cards advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its Licensor;
18.1.3 the Buyer will use all reasonable endeavours to ensure compliance with this Condition by its employees, servants and agents.
18.2 This Condition shall survive the termination of the Contract.
19.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail:
19.1.1 (in the case of communications to the Seller) to Rob McAlister Ltd, Rob McAlister Ltd, Unit 15 H, Hackworth Ind Park, Shildon, Co Durham, DL4 1HF, United Kingdom or such changed address as shall be notified to the Buyer by the Seller; or
19.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.
19.2 Communications shall be deemed to have been received:
19.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
19.2.2 if delivered by hand, on the day of delivery; or
19.2.3 if sent by fax or electronic mail on a Business Day prior to 5.00 pm, at the time of transmission and otherwise on the next Business Day.
20. Force Majeure
20.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 20.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
20.2 Sub-clause 20.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
20.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
20.4 If and when the period of such incapacity exceeds 6 months then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.
No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
23. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
24. Conditions and warranties
24.1 The Contract shall not constitute a sale by description or sample unless otherwise agreed in writing and signed by both parties.
24.2 Any conditions or warranties (whether expressed, implied by statue or common law or arising from conduct, a previous course of dealing or trade, custom or usage or otherwise how so ever) as to the quality of the Goods and/or Services or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Seller) or as to the correspondence of the Goods with any description or sample are hereby expressly agreed not to apply.