Standard Terms and Conditions of Sale (Nov 2007)
a) In these Conditions, the following words shall have the following meanings:
"Conditions" our standard terms and conditions of sale, as set out herein, together with any future amendments, modifications and revisions;
"Goods" the goods (including any instalment or part for them) which we are to supply to you in accordance with these conditions;
"References" any bank or trade references that we may require from you before opening a credit account in your favour;
"we" HotTub DIY, and the terms "us" and "our" shall be construed accordingly;
"You" the individual, organisation or company whose order for Goods is accepted by us, and the term "your" shall be construed accordingly.
b) The headings in these conditions are for convenience only and shall not effect their interpretation.
c) All rights and remedies expressly reserved by us in these Conditions are without prejudice to any other right or remedy available to us.
d) Where rights and decisions are to be exercised or made at our sole discretion then we shall be under no duty or obligation to justify or provide a reason to you for the decision.
2) Terms of Sale
a) These Conditions are the only terms upon which we offer and agree to contract with you and no alteration of these terms shall be valid unless previously agreed in writing by us. In no case shall your conditions of purchase (if any) apply.
b) Our employees or agents are not authorised to make any representations concerning the Goods unless confirmed by us in writing. In entering into the contract you acknowledge that you do not rely on, and waive any claim for breach of any such representations which are not so confirmed.
c) Any advice or recommendation we may give as to the storage, application or use of the Goods and which we do not confirm in writing is followed or acted upon entirely at your own risk, and accordingly we shall not be liable for any such advice or recommendation which is not so confirmed.
d) Any typographical, clerical or other error or omission in any sales literature, website based information, quotation, price list, acceptance of offer, invoice or other document or information issued by us shall be subject to correction without any liability on our part.
e) No drawings, illustrations or descriptions or any other information submitted or contained in catalogues our website or other advertising matter shall be deemed to form part of the contract but are for general information and guidance only.
3) Orders for Goods
a) All orders placed by you will be in writing and are on a "firm sale" basis. We do not operate a "sale or return" or "exchange and return" policy.
b) You accept full responsibility for the accuracy of all orders you place with us.
c) You acknowledge that all descriptions, specifications, drawings and details of weights and dimensions produced by us are approximate only.
d) We will only accept cancellation of an order on condition that you reimburse us in full all costs and expenses incurred by us and arising from the cancellation (whether directly or indirectly) and all loss of profits and other loss, damages, costs, charges and expenses resulting to or incurred by us as a result.
e) Each order for Goods placed by you will constitute a separate contract into which these Conditions are hereby expressly incorporated and any default by us in relation to any one order shall not entitle you to treat these Conditions as terminated.
4) Price of the Goods
a) Except where agreed in writing the prices quoted are based on the present cost of materials, labour and transport and acceptance of any order shall be subject to increases in price at any time before delivery arising from any factor beyond our control (including without limitation, an increase in transport, labour or material costs, any change in delivery dates, quantities or specifications for Goods requested by you or any delay caused by your instructions being inadequate).
b) We reserve the right to increase the quoted prices if your instructions are such that we are required to carry out work other than during normal working hours.
5) Terms of Payment
a) All credit accounts are granted subject to our approval of your References. Where you do not have a credit account, all amounts charged by us shall be net of taxation and other applicable charges and payable in full upon delivery of the Goods to you, unless otherwise agreed by us in writing.
b) If you fail to make any payment on the due date then we shall be entitled (at our sole discretion) to:
i) cancel the contract or suspend any further deliveries to you;
ii) appropriate any payment made by you to such of the Goods (or, at our sole discretion, towards any other sums owed by you to us as are outstanding) as we may think fit; and
iii) charge you interest (both before and after any judgement) on the amount outstanding from to time, at the rate of 5 per cent per annum above Barclays Bank plc base rate to accrue pro rata on a daily basis from the due date until the date of actual payment in full; and
iv) reimbursement from you in respect of all debt collection and/or legal expenses incurred by us in recovering or attempting to recover outstanding sums; and
v) charge you £10 for each unpaid cheque submitted by you to us.
6) Risk and Property
a) Risk of damage to or loss of the Goods shall pass to you where the Goods or any part thereof leave our premises for delivery to you, notwithstanding that we may arrange for delivery
b) Notwithstanding clause 5a above, the property in the Goods shall not pass to you until we have received payment in full (in cash or cleared funds payment) for the Goods and all other goods agreed to be sold by us to you for which payment is then due
c) Until the property in the Goods passes to you, you will hold the Goods as our fiduciary agent and bailee, and shall keep the Goods separate from other goods and properly stored, protected and insured and identified as our property. Until that time you will be entitled to resell or use the Goods in the ordinary course of your business, but shall account to us for the proceeds of sale or otherwise of the Goods, including insurance proceeds, and shall keep all such proceeds separate from any other moneys or property and, in the case of tangible proceeds, property stored, protected and insured.
d) Until the property in the Goods passes to you (and provided the Goods are still in existence and have not been resold), we shall be entitled at any time to require you to deliver up the Goods to us and, if you fail to do so immediately, we reserve the right to enter upon any premises where the Goods are stored and repossess the Goods and to dismantle the same (without being liable for any damage caused by so doing)
e) You will not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain our property, but if you do so all moneys owing by you to us will forthwith become due and payable.
f) You will at our request assign to us any right of action against any third party in respect of moneys due for such goods or products.
a) The Goods shall be deemed to have been delivered when you collect the Goods from our premises at any time after we have notified you that the Goods are ready for collection or, if we agree some other place for delivery, when we deliver the Goods to that place.
b) Any dates quoted for delivery of the Goods are approximate only and we shall not be liable for any delay in delivery of the Goods howsoever caused. We may deliver the Goods before the quoted delivery date upon giving you reasonable notice.
c) Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by us to deliver any one or more of the instalments in accordance with these Conditions or any claim by you in respect of any one or more instalments shall not entitle you to treat the contract as a whole as repudiated.
d) If we fail to deliver the Goods for any reason other than any cause beyond our reasonable control or your fault, and we are accordingly liable to you, our liability shall be limited to the excess (if any) of the cost to you (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
e) If you fail to take delivery of the Goods or fail to give us adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond your reasonable control or by reason of our fault) then, without prejudice to any other right or remedy available to us, we may:
i) store the Goods until actual delivery and charge you for the reasonable costs (including insurance) of storage; or
ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the price under the contract or charge you for any shortfall below the price under the contract.
8) Extent of Liabilities
a) We shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by you, nor in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow our instruction (whether oral or in writing), misuse or alteration or repair of the goods without our approval;
b) Further, we shall be under no liability under any warranty, condition or guarantee (if any) if the total price for the Goods has not been paid by the due date for payment.
c) Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
d) You will notify us of any claim you make based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not you refuse delivery) within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If you do not refuse delivery and do not notify us accordingly, you will not be entitled to reject the Goods and we shall have no liability for such defect or failure, and you will be bound to pay the price as if the Goods had been delivered in accordance with the contract.
e) Where you notify us of any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification in accordance with these conditions, we shall be entitled to replace the Goods (or the part in question) free of charge or, at our sole discretion, refund to you the price of the Goods (or a proportionate part of the price), but we shall have no further liability to you. You must not reject part only of the goods without our consent.
f) Except in respect of death or personal injury caused by our negligence, we shall not be liable to you by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other clams for consequential compensation whatsoever (and whether caused by our negligence, or that of our employees or agents) which arise out of or in connection with the supply of the Goods or their use or resale by you except as expressly provided in these conditions.
g) We shall not be liable to the Buyer or be deemed to be in breach of these Conditions by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Goods, if the delay or failure was due to any cause beyond our reasonable control.
9) Consumer Protection
a) Clause 9 only applies where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979). Your statutory rights are not affected by any provision of clause 9.
b) All Goods sold by us in accordance with these Conditions benefit from the protection granted to consumers by the EC Directive on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees.
c) Notwithstanding clause 3a, you have the right to cancel the contract upon notice and return the Goods to us (at your expense) to our address for service within seven working days starting the day after delivery.
This right does not apply to any Goods made or supplied to your specific requirements or are personalised in any way.
d) If you exercise your right in accordance with clause 9c, we shall provide you with a full refund less any direct costs of recovering possession of or damage caused to the Goods within 30 days of cancellation.
10) Insolvency of Buyer
a) We reserve the right to cancel the contract or suspend any further deliveries under these Conditions without liability 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, if you:
i) commit any act of bankruptcy or enter into any liquidation (other than for the purpose of reconstruction or amalgamation);
ii) have a receiving order made against you or have a receiver of all or any of your undertakings or assets appointed;
iii) make or negotiate for any composition or arrangement with or assignment for the benefit of your creditors;
iv) present a petition or have a petition presented by a creditor for its winding-up;
v) call any meeting of your creditors, or make or negotiate for any composition or arrangement with or assignment for the benefit of your creditors; or
vi) cease to carry on business.
a) You hereby undertake to us that:
i) the site is accessible, clear, level and dry in readiness for the arrival of the installers;
ii) a suitable electricity supply is available for light and power tools;
iii) sufficient working space has been allocated to ensure maximum output and sufficient storage space is provided free of charge for our immediate use on or adjacent to the site for plant and all materials and that where applicable all materials are on site for the arrival of the installers;
iv) our employees and/or agents are given every facility to complete the work without undue interference;
v) we shall not be responsible for the washing or wiping down of the goods; and
vi) there is sufficient labour available to off-load the delivery vehicle without delay.
b) We reserve the right to make additional charges should these conditions not be adhered to and such charges shall include (although not by way of limitation) loss of profit and/or damages for delay, inconvenience, increased labour and/or transport costs.
c) You and we acknowledge that these Conditions are not intended to confer a benefit to any third party and, accordingly, no third party shall have the right to enforce any term of these Conditions. d) You will obtain all necessary consents, licences and approvals for the installation or erection of the goods. You will indemnify us against all costs and expenses we incur due to your failure to obtain such consent, licences or approvals.
e) Where you erect or install our product it is your responsibility to ensure so far as it is practicable that nothing about the manner or method of erection/installation makes it unsafe or constitutes a risk to health or safety and we shall not be liable for the costs of rectifying or putting right discrepancies faulty or improper assembly where you carry out your own installation or maintenance work unless authorised by us in writing.
f) We reserve the right to change and improve the design of some or all of the component parts of our products and undertake that any such changes will not materially and adversely affect the purpose for which the Goods were to be supplied.
g) All estimates, drawings, designs, plan or models we may prepare for your information remain our property and are subject to our copyrights. They must not in whole or in part be submitted to or copied or otherwise made use of by any other party.
h) Any notice required or permitted under these Conditions or required by law shall be in writing and shall be sent by pre-paid recorded delivery (whereby it shall be deemed to have been delivered two working days after posting) provided that the envelope is properly delivered or posted and addressed as set out above or to such other address as may from time to time be designated by notice hereunder.
i) No waiver by us of any breach of the contract 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
j) You will not use any of our intellectual property rights in connection with any product or service in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us, without our prior written consent.
k) You agree to us collecting and using such details as you provide to us for such purposes as are necessary in our sole discretion for us to comply with our contractual obligations hereunder. We may have to pass your details onto responsible third parties for the same purpose. We shall not be responsible for any breach of security or any act or omission of third parties who receive the your details
l) We reserve the right to vary these conditions at any time but, in respect of any ordered Goods, the conditions which apply shall be those which are accepted when you placed your order
m) Our address for service is on our 'Contact Page'. Our VAT registration number is availabale on request.
n) These Conditions shall be governed by the laws of England and that both you and we agree to submit to the exclusive jurisdiction of the English Courts.
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