Terms and Conditions for the Supply of Goods to Consumers
The customer’s attention is drawn in particular to the provisions of clause 9.
When the following words with capital letters are used in these Terms, this is what they will mean;
Event Outside Our Control: is defined in clause 10.2;
Goods: the goods that We are selling to you as set out in the Order;
Order: your order for the Goods as set out in your purchase order form or in your written acceptance of our quotation, as the case may be;
Terms: the terms and conditions set out in this document; and
We/Our/Us: Gabriel Ash Limited of Monument Place, Churton Road, Farndon, Chester CH3 6QP (registered in England and Wales with Company Number 03728763).
1.2. When We use the words “writing” or “written” in these Terms, this will include e-mail unless We say otherwise.
2. Our Contract With You
2.1. These are the terms and conditions on which We supply Goods to you.
2.2. Please ensure that you read these Terms carefully, and check that the details on the Order and in these Terms are complete and accurate, before you sign and submit the Order. If you think that there is a mistake or require any changes, please contact Us to discuss.
2.3. When you submit the Order to Us, this does not mean We have accepted your order for Goods. Our acceptance of the Order will take place as described in clause 2.4. If We are unable to supply you with the Goods, We will inform you of this in writing and We will not process the Order.
2.4. These Terms will become binding on you and Us when We issue you with a written acceptance of an Order at which point a contract will come into existence between you and Us.
2.5. We shall assign an order number to the Order and inform you of it when We confirm the Order. Please quote the order number in all subsequent correspondence with Us relating to the Order.
2.6. Our website, catalogue and brochure are solely for the promotion of Our Goods in the UK.
2.7. The images of the Goods on Our website or in Our catalogue or brochure are for illustrative purposes only. Although We have made every effort to display the colours accurately, We cannot guarantee that your computer’s display of the colours or the printed pictures accurately reflect the colour of the Goods. Your Goods may vary slightly from those images.
3. Changes to Order or Terms
3.1. We may revise these Terms from as a result of changes in relevant laws and regulatory requirements.
3.2. If We have to revise these Terms under clause 3.1, We will give you at least one month’s written notice of any changes to these Terms before they take effect. You can choose to cancel the contract in accordance with clause 11.
3.3. You may make a change to the Order for Goods at any time up to 7 working days before We despatch the Goods by contacting Us, except in the case of made-to-measure Goods. Where this means a change in the total price of the Goods, We will notify you of the amended price in writing. You can choose to cancel the Order in accordance with clause 11.1 in these circumstances.
3.4. If you wish to cancel an Order before it has been fulfilled, please see your right to do so in clause 11. In the case of made-to-measure Goods, unfortunately, because We make these Goods to your specific requirements, you will not be able to cancel an Order once it is made.
4. Bespoke goods
4.1. In some circumstances we will make the Goods to a bespoke structure according to the Order you provide Us. You can find information and tips on how to measure in Our brochure or on Our website, or by contacting Us.
4.2. Please make sure your Order is correct and accurate. Unfortunately, We cannot accept the return of bespoke Goods if the reason for the return is because you provided Us with an incorrect Order. However, this will not affect your legal rights as a consumer in relation to bespoke Goods that are faulty or not as described. Advice about your legal rights is available at your local Citizen’s Advice Bureau or Trading Standards office.
5. Delivery of goods
5.1. Please note that timescales for delivery and delivery charges will vary depending on the availability of the Goods and your address. Please allow for extra time for deliveries to the Scottish Highlands and Islands.
5.2. We will contact you with an estimated delivery date. Occasionally Our delivery to you may be affected by an Event Outside Our Control. See clause 10 for Our responsibilities when this happens.
5.3. If no one is available at your address to take delivery, We will leave the Goods in a prearranged place with the exception of Goods dispatched by courier where a signature is required.
5.4. If We miss the delivery deadline for any Goods then you may cancel your Order straight away if any of the following apply:
5.4.1. We have refused to deliver the Goods;
5.4.2. delivery within the delivery deadline was essential (taking into account all the relevant circumstances)
5.4.3. or you told Us before we accepted your order that delivery within the delivery deadline
5.5. If you do not wish to cancel your order straight away, or do not have the right to do so under clause 5.4, you can give Us a new deadline for delivery, which must be reasonable, and you can cancel if your Order if we do not meet the new deadline.
5.6. If you do choose to cancel your Order for late delivery under clause 5.4 or clause 5.4.3, you can do so for just some of the Goods or all of them, unless splitting them up would significantly reduce their value. If the Goods have been delivered to you, you will have to return them to Us or allow Us to collect them, and We will pay the costs of this. After you cancel your Order We will refund any sums you have paid to Us for the cancelled Goods and their delivery.
5.7. Delivery of an Order shall be completed when We deliver the Goods to the address you gave Us or a carrier organised by you and the Goods will be your responsibility from that time.
5.8. You own the Goods once We have received payment in full.
6. If the goods are faulty
As a consumer, you have legal rights in relation to Goods that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office. Nothing in these Terms will affect these legal rights.
7. Seller’s guarantee of goods
7.1. We guarantee that on delivery and for a period of 10 years from delivery, the Goods shall be free from material defects. Bayliss Autovents are guaranteed for 2 years by the manufacturer. However, this guarantee does not apply in the circumstances described in clause 7.2.
7.2. This guarantee does not apply to any defect in the Goods arising from:
7.2.1. fair wear and tear;
7.2.2. wilful damage, abnormal storage or working conditions, accident, negligence by you or by any third party;
7.2.3. if you fail to operate or use the Goods in accordance with the user instructions;
7.2.4. any alteration or repair by you or by a third party who is not one of Our authorised repairers; and
7.2.5. any specification provided by you.
7.3. This guarantee is in addition to, and does not affect, your legal rights in relation to the Goods that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
8. Price and Payment
8.1. The price of the Goods will be set out in Our price list in force at the time We confirm your Order. Our prices may change at any time, but price changes will not affect Orders that We have confirmed with you.
8.2. These prices include VAT. However, if the rate of VAT changes between the date of the Order and the date of delivery or performance, We will adjust the rate of VAT that you pay, unless you have already paid for the Goods in full before the change in the rate of VAT takes effect.
8.3. In mainland England, and Wales, the majority of Scotland, delivery on all Goods is free. Deliveries to parts of Northern Scotland and the Isle of Wight will attract an additional charge. For deliveries outside of the UK, we can arrange delivery of the Goods via a courier.
8.4. It is always possible that, despite Our best efforts, some of the Goods We sell may be incorrectly priced. We will normally check prices as part of Our despatch procedures so that, where the Goods’ correct price is less than Our stated price, We will charge the lower amount when dispatching the Goods to you. If the Goods’ correct price is higher than the price stated on Our site, We will contact you to tell you and for your instructions. If the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, We do not have to provide the Goods to you at the incorrect (lower) price.
8.5. Where We are providing Goods to you, you must make payment for Goods in advance by credit or debit card. We accept payment with Visa, Visa Debit, Mastercard or American Express. We will not charge your credit or debit card until We despatch the Goods to you. We take a 50% deposit at the time of order and the balance is due on delivery with the exception of orders placed online where the payment is taken at the time of order.
8.6. If you do not make any payment due to Us by the due date for payment, We may charge interest to you on the overdue amount at the rate of 4% a year above the base lending rate of the Bank of England from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay Us interest together with any overdue amount.
8.7. However, if you dispute an invoice in good faith and contact Us to let Us know promptly after you have received an invoice that you dispute it, clause 8.5 will not apply for the period of the dispute.
9. Our Liability To You
9.1. If We fail to comply with these Terms, We are responsible for loss or damage you suffer that is a foreseeable result of Our breach of the Terms or Our negligence, but We are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of Our breach or if it was contemplated by you and Us at the time we entered into this contract.
9.2. If We are installing the Goods in your property, We will make good any damage to your property caused by Us in the course of installation or performance. However, We are not responsible for the cost of repairing any pre-existing faults or damage to your property that We discover in the course of installation and/or performance by Us.
9.3. We only supply the Goods for domestic and private use. You agree not to use the Goods for any commercial, business or re-sale purpose, and We have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
9.4. We do not exclude or limit in any way Our liability for:
9.4.1. death or personal injury caused by Our negligence or the negligence of Our employees, agents or subcontractors;
9.4.2. fraud or fraudulent misrepresentation;
9.4.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
9.4.4. breach of the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples); and
9.4.5. defective products under the Consumer Protection Act 1987.
10. Events Outside Our Control
10.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under these Terms that is caused by an Event Outside Our Control.
10.2. An Event Outside Our Control means any act or event beyond Our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks].
10.3. If an Event Outside Our Control takes place that affects the performance of Our obligations under these Terms:
10.3.1. We will contact you as soon as reasonably possible to notify you; and
10.3.2. Our obligations under these Terms will be suspended and the time for performance of Our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects Our delivery of Goods to you, We will arrange a new delivery date with you after the Event Outside Our Control is over.
10.4. You may cancel the contract if an Event Outside Our Control takes place and you no longer wish Us to provide the Goods. Please see your cancellation rights under clause 11. We will only cancel the contract if the Event Outside Our Control continues for longer than 25 weeks in accordance with Our cancellation rights in clause 11.
11. Your rights to cancel and applicable refund
11.1. Before the Goods are delivered, you have the following rights to cancel an Order for Goods (other than bespoke Goods), including where you choose to cancel because We are affected by an Event Outside Our Control or We change these Terms under clause 3.1 to your material disadvantage:
11.1.1. you may cancel any Order for Goods within 21 calendar days of placing an Order by contacting Us. We will confirm your cancellation in writing to you;
11.1.2. if you cancel an Order under clause 11.1.1 and you have made any payment in advance for Goods that have not been delivered to you, We will refund these amounts to you and any delivery charges;
11.1.3. unfortunately, if you cancel an Order for Goods under clause 11.1.1 and We have already despatched your Goods to you, We will not be able to cancel your Order until it is delivered. In this case, if you return the Goods to Us, We will have to charge you the cost of collection or you will have to pay the cost of returning the Goods back to Us. This will not affect your refund for the Goods themselves, but we will not refund any charges for delivery and any charge for collection will be deducted from the refund that is due to you.
11.2. Unfortunately, as the made-to-measure Goods are made to your requirements, you will not be able to cancel your Order once made (but this will not affect your legal rights as a consumer in relation to made-to-measure Goods that are faulty or not as described).
12. Our rights to cancel and applicable refund
We may have to cancel an Order before the Goods are delivered, due to an Event Outside Our Control or the unavailability of stock. If this happens:
12.1.1. we will promptly contact you to let you know;
12.1.2. if you have made any payment in advance for Goods that have not been delivered to you, We will refund these amounts to you;
12.1.3. where We have already started work on your Order for made-to-measure Goods by the time We have to cancel under clause 12.1.1, We will not charge you anything and you will not have to make any payment to Us.
13. Information About Us And How To Contact Us
13.1. We are a company registered in England and Wales. Our company registration number is 03728763 and Our address is Monument Place, Churton Road, Farndon, Chester, Cheshire CH3 6QP.
13.2. If you have any questions or if you have any complaints, please contact Us. You can contact Us by telephoning Our customer service team at 01829 271890 or by e-mailing Us at [email protected]
13.3. If you wish to contact Us in writing, or if any clause in these Terms requires you to give Us notice in writing (for example, to cancel the contract), you can send this to Us by e-mail, by hand, or by post to Gabriel Ash at Monument Farm, Farndon, Chester CH3 6QP and for [email protected] We will confirm receipt of this by contacting you in writing. If We have to contact you or give you notice in writing, We will do so by e-mail, by hand, or by prepaid post to the address you provide to Us in the Order.
14. How We May Use Your Personal Information
14.1. We will use the personal information you provide to Us to:
14.1.1. provide the Goods;
14.1.2. process your payment for such Goods; and
14.1.3. inform you about similar products or services that We provide, but you may stop receiving these at any time by contacting Us.
14.2. We will not give your personal data to any third party.
15. Other Important Terms
15.1. We may transfer Our rights and obligations under these Terms to another organisation, and We will always tell you in writing if this happens, but this will not affect your rights under the contract or the obligations owed to you under the Contract.
15.2. You may only transfer your rights or your obligations under these Terms to another person if We agree in writing.
15.3. This contract is between you and Us. No other person shall have any rights to enforce any of its terms.
15.4. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
15.5. If We fail to insist that you perform any of your obligations under these Terms, or if We do not enforce Our rights against you, or if We delay in doing so, that will not mean that We have waived Our rights against you and will not mean that you do not have to comply with those obligations. If We do waive a default by you, We will only do so in writing, and that will not mean that We will automatically waive any later default by you.
15.6. These Terms are governed by English law. You and We both agree to submit to the nonexclusive jurisdiction of the English courts. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of Scotland, you may also bring proceedings in Scotland.
Terms and Conditions for the Supply of Goods to Non-Consumers
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form or in the Customer’s written acceptance of the Supplier’s quotation or in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: Gabriel Ash Ltd of Monument Place, Churton Road, Farndon, Chester, Cheshire, CH3 6QP (registered in England and Wales with company number 03728763).
1.2. Construction. In these Conditions, the following rules apply:
1.2.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2. A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.4. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5. A reference to writing or written includes faxes and e-mails.
2. Basis of Contract
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5. Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6. A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1. The Goods are described in the Supplier’s catalogue as modified by any applicable Specification.
3.2. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3. The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1. The Supplier shall ensure that:
4.1.1. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2. if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2. The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4.4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5. If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6. If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.6.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2. the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7. If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8. The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered.
4.9. The Supplier may deliver the Goods by installments, which shall be invoiced and paid for separately. Each installment shall constitute a separate Contract. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.
5.1. The Supplier warrants that on delivery, and for a period of 10 years from the date of delivery (warranty period), the Goods shall:
5.1.1. conform in all material respects with their description and any applicable Specification;
5.1.2. be free from material defects in design, material and workmanship;
5.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4. be fit for any purpose held out by the Supplier.
5.2. Subject to clause 5.3, if:
5.2.1. the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2. the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3. the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3. The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1. the Customer makes any further use of such Goods after giving notice in
accordance with clause 5.2;
5.3.2. the defect arises because the Customer failed to follow the Supplier’s oral or written
instructions as to the storage, commissioning, installation, use and maintenance of
the Goods or (if there are none) good trade practice regarding the same;
5.3.3. the defect arises as a result of the Supplier following any drawing, design or
Specification supplied by the Customer;
5.3.4. the Customer alters or repairs such Goods without the written consent of the
5.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or
abnormal storage or working conditions; or
5.3.6. the Goods differ from their description or the Specification as a result of changes
made to ensure they comply with applicable statutory or regulatory requirements.
5.4. Except as provided in this clause 5, the Supplier shall have no liability to the Customer in
respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent
permitted by law, excluded from the Contract.
5.6. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and Risk
6.1. The risk in the Goods shall pass to the Customer on completion of delivery.
6.2. Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1. the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2. the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4. notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.5. give the Supplier such information relating to the Goods as the Supplier may require
from time to time.
6.4. Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1. it does so as principal and not as the Supplier’s agent; and
6.4.2. title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy the Supplier may have:
6.5.1. the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2. the Supplier may at any time:
188.8.131.52. require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
184.108.40.206. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Price and Payment
7.1. The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2. The Supplier may, by giving notice to the Customer at any time up to three Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1. any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3. any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3. Unless otherwise stated the price of the Goods is exclusive of the costs and charges of insurance and transport of the Goods.
7.4. Unless otherwise stated the price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5. The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6. The Customer shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7. If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.8. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. Termination and Suspension
8.1. If the Customer becomes subject to any of the events listed in clause 8.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
8.2. For the purposes of clause 8.1, the relevant events are:
8.2.1. the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
8.2.2. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.3. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.4. (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
8.2.5. (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
8.2.6. a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
8.2.7. (being an individual) the Customer is the subject of a bankruptcy petition or order;
8.2.8. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
8.2.9. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to clause 8.2.6 (inclusive);
8.2.10. the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
8.2.11. the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
8.2.12. (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3. Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.2.1 to clause 8.2.12, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.4. On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
8.5. Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
8.6. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. Limitation of Liability
9.1. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4. defective products under the Consumer Protection Act 1987; or
9.1.5. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2. Subject to clause 9.1:
9.2.1. the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2. the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
10. Force Majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. AForce Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third
party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1. Assignment and other dealings
11.1.1. The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
11.2.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
11.2.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3.1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.3.2. If one party gives notice to the other of the possibility that any provision or partprovision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal,
valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.4. Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.5. Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6. Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
11.7. Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
11.8. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
If you do have a complaint please write to Gabriel Ash Ltd, Monument Farm, Farndon, Chester CH3 6QP or call 00 44 1829271888 or email [email protected] Gabriel Ash welcomes and learns from complaints. We aim to deal with complaints speedily and sympathetically. All complaints are logged, investigated and replied to. Financial Complaints – Where complaints related to the consumer credit offer are not resolved to the customer’s satisfaction the customer may
have the right to refer their complaint, in writing, to the Financial Ombudsman Service, for independent investigation. Details will be provided as appropriate.