Terms and Conditions
TERMS AND CONDITIONS OF SALE
1. Definitions and interpretation
1.1 The following definitions shall apply in these Terms and Conditions
|Business Day||means any day other than a Saturday, Sunday or public holiday when banks in London are open for business.|
|Buyer||means the individual, partnership or company which purchases the Products from the Seller|
|Contract||means the agreement between the Seller and the Buyer for the sale and purchase of Products in accordance with these Terms and Conditions.|
|Delivery||means the completion of unloading of the Products at the Delivery Location|
|Delivery Location||means the address specified in the Order.|
|Force Majeure Event||means fire, explosion, flood, lightning, collapse of building structures, act of God, act of terrorism, war, rebellion, riot, sabotage, or official strike or similar official labour dispute, breakdown of plant or machinery, default of suppliers or contractors or events or circumstances outside the reasonable control of the Seller.|
|Brundle Gardener||means the design software available at www.brundlegardener.co.uk which the Buyer may use to order Products from the Seller.|
|Order||means the Buyer's order for the Products as sent to the Seller through the Sellerâ€™s website or via Brundle Gardener.|
|Order Acknowledgment Form||means the Seller's standard form which is sent to the Buyer to accept the Order.|
|Products||means the goods (or any part of them) as set out in each or any Order Acknowledgement Form relating to the supply of such products.|
|Seller||means F.H. Brundle a company registered in England and Wales (Company number: 07168270). The registered address is 24-36 Lamson Road, Rainham, Essex RM13 9YY. The registered VAT number is 232242310.|
|Specification||means any specification of the Products including dimensions, quantity and materials.|
|Terms and Conditions||means the terms and conditions as set out in this document.|
2. Contact information
2.1 The Buyer can contact the Seller by email at email@example.com or by using the email address, postal address or telephone number provided for each of the stores on the Seller's website:www.brundlegardener.co.uk/customer-services
2.2 The Seller may contact the Buyer by using the telephone number, email address or postal address provided by the Buyer in the Order.
3. Formation of contract
3.1 These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No addition, alteration or substitution of these Terms and Conditions will bind the Seller unless they are expressly accepted in writing by a person authorised to sign on the Seller's behalf.
3.2 The Order shall constitute an offer to purchase the Products in accordance with these Terms and Conditions. The Buyer is responsible for ensuring that the Order and Specification, measurements, related plans and/or drawings, submitted through the Sellerâ€™s website or through Brundle Gardener, are complete and accurate.
3.3 The Order shall only be deemed to be accepted when the Seller issues the Order Acknowledgement Form, at which point the Contract shall come into existence. The Buyer shall report any errors in the Order Acknowledgement Form immediately to the Seller.
3.4 Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's catalogues or on the Seller's website are produced for the sole purpose of giving an approximate idea of the Products described there. They shall not form part of the Contract nor be of any legal effect.
3.5 A quotation for the Products given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 60 days from its date of issue.
3.6 Where the Buyer is a business, the Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, or representation made or given by or on behalf of the Seller, which is not set out in the Contract.
3.7 In some areas the Buyer will have different rights under a Contract depending on whether the Buyer is a business or a consumer. These Terms and Conditions will indicate where such rights differ. For the avoidance of doubt, a consumer is an individual who is buying the Products wholly or mainly for their personal use and not for use in connection with their trade, business or profession.
4. Specification and information
4.1 The Seller shall provide the Products upon the basis of the Specification including the details, measurements and other information provided by the Buyer in the Order. The Seller shall not be responsible for any errors in the Products caused by the Buyer providing incorrect details, measurements or other information.
4.2 The Buyer shall be responsible for ensuring that all relevant information as to the proposed use of the Products is made available both to the Seller and any end user.
4.3 The Seller reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.4 The images of the Products on the Sellerâ€™s website are for illustrative purposes only. The Seller has made every effort to display the Products accurately; however, it cannot guarantee that a device's display of the colours will accurately reflect the colour of the Products.
4.5 The Seller may make minor changes to the Products which are not made in accordance with a Specification. The Seller will only make such changes to reflect changes in relevant laws and regulatory requirements, or to implement minor technical adjustments and developments.
5. Delivery and acceptance
5.1 The Seller will deliver the Products to the Buyer as soon as reasonably possible and in any event within 30 days from the day after issuing the Order Acknowledgement form unless the Seller and the Buyer agree a delivery date.
5.2 The Buyer shall be deemed to have accepted the Products upon their delivery by the Seller to the Delivery Location.
5.3 Any time or date for Delivery given by the Seller is given in good faith, but is an estimate only. Time of delivery is not of the essence.
5.4 The Seller shall not be liable for any delay or failure in delivery of the Products that is caused by a Force Majeure Event, or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Products. In the event of a Force Majeure Event, the Seller shall contact the Buyer as soon as possible to let them know and shall take reasonable steps to minimise the delay.
5.5 The Seller may deliver the Products by instalments, which shall be invoiced and paid for separately. Where the Buyer is a business, any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment or terminate the Contract.
6. Title and risk
6.1 Risk in the Products shall pass to the Buyer upon delivery but title to the Products shall not pass to the Buyer until the Seller has received payment in full in cleared funds for the Products.
6.2 The Seller shall be entitled to take action to recover the price of the Products once such payment has become due regardless of whether title in the Products has passed to the Buyer. For the avoidance of doubt, title to the Products shall not pass to the Buyer until the Seller has received payment in full in cleared funds for the Products by settlement of a judgment debt by payment or enforcement, or earlier payment.
6.3 Until such time as title in the Products passes to the Buyer, the Buyer shall:
- 6.3.1 hold the Products as the Seller's bailee;
- 6.3.2 keep the Products separate from those of the Buyer and third parties and properly stored and identified as the Seller's property and retain all the Seller's identification of the Products;
- 6.3.3 maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
- 6.3.4 provide the Seller with such information relating to the Products as it may require from time to time, but the Buyer may sell or otherwise use the Products in the ordinary course of its business.
6.4 Until such time as title in the Products passes to the Buyer (and provided the Products are still in existence), the Seller may at any time require the Buyer to deliver up the Products to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Products are stored and repossess the Products.
6.5 Until such time as title in the Products passes to the Buyer, the Buyer shall not be permitted to pledge or any way charge by way of security for any indebtedness any of the Products. In the event that the Buyer, in breach of this provision, proceeds to so pledge or charge the Products then all monies owing by the Buyer to the Seller under the Contract or any other agreement shall without prejudice to clause 7.2 of these Terms and Conditions (without limiting any other right or remedy or the Seller) forthwith become due and payable.
7. Price and payment
7.1 The price of the Products shall be set out in the Order Acknowledgment Form and will be confirmed in an invoice. Such an invoice may be raised by the Seller at any time after dispatch of the Products.
7.2 Unless otherwise agreed in writing by the Seller, payment for the Products in full and cleared funds shall become due at the end of the month following the month in which the Products were invoiced and time for payment shall be of the essence.
7.3 The Buyer shall pay a non-refundable deposit of 50% of the price of all Products which are non-standard lines (NS lines) to the Seller on receipt of the Order Acknowledgement Form. When paying the deposit, the Buyer shall also return a signed copy of the Order Acknowledgement Form. All Products in the NS lines are manufactured to order and accordingly any such Orders may not be cancelled nor the Products be returned unless they are found to be defective.
7.4 The Seller does not accept payments made by American Express or PayPal.
7.5 The Seller reserves the right at any time before Delivery to increase the price of the Products to reflect any increase in the cost of the Contract which is due to:
- 7.5.1 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 cost of labour, materials or other costs of manufacture);
- 7.5.2 any change in delivery date or Specification which is requested by the Buyer; or
- 7.5.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
7.6 Where the price of the Products has increased pursuant to clause 7.3, the Seller shall give the Buyer written notice of the increase. The Buyer shall have the option of accepting the higher price or cancelling the Contract.
7.7 The price of the Products is exclusive of value added tax ("VAT"). The Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional sums in respect of VAT as are chargeable on the supply of the Products.
7.8 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
- 7.8.1 terminate the Contract or suspend any further deliveries to the Buyer;
- 7.8.2 appropriate any payment made by the Buyer to such of the Products (or the Products 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
- 7.8.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4% per annum above Barclays Bank 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) and the Seller reserves the right to claim interest under the Late Payments of Commercial Debts (Interest) Act 1998. The Buyer shall pay the interest together with the overdue amount.
7.9 All payments (whether pursuant to an invoice issued by to the Seller or otherwise) due or payable to the Seller under the Contract shall be payable immediately by the Buyer upon the Contract being terminated and/or upon the Seller's request despite any other provision.
7.10 The Seller hereby reserves the right to recharge the Buyer for the costs incurred in connection with the Seller's efforts to collect any outstanding payments including without limitation any legal costs reasonably incurred by the Seller or in connection with any third party debt collection agency.
7.11 Where the Buyer is a business, all amounts due under the Contract shall be paid in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part.
8. Product fault
8.1 The Seller is under a legal duty to supply products which conform to the Contract. Nothing in these Terms and Conditions will affect consumers' statutory rights. The Products must be as described, fit for purpose and of satisfactory quality.
8.2 If the Buyer discovers any fault with the Products, they may be entitled to a refund or to have the Product in question replaced or repaired. Any faults or defects should be reported to the Seller immediately on discovery using the contact details provided in clause 2.1.
8.3 If the Buyer discovers any fault with the Products, it should report such a fault to the Seller immediately on discovery using the contact details provided in clause 2.1.
8.4 On being notified of any fault, the Seller may examine the Products or require that the Buyer allow the Seller to collect the Products for examination. Having examined the Products if satisfied that there is a fault, the Seller shall, at its option, repair or replace the Products or refund the price in full.
8.5 The Seller shall not be liable for any fault where:
- 8.5.1 the Buyer continues to use the Products after reporting the fault in accordance with clause 8.5;
- 8.5.2 the Buyer failed to install, use or maintain the Products in accordance with any oral or written instructions provided by the Seller or, in the absence of such instructions, in accordance with trade practice;
- 8.5.3 the fault is a result of any designs, drawings or specifications provided by the Buyer;
- 8.5.4 the Buyer altered or repaired the Products; or
- 8.5.5 the fault arose as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions.
8.6 Having repaired or replaced the Product or having provided a full refund, the Seller shall have no further liability to the Buyer in respect of its legal duties set out in clause 8.3.
8.7 These Terms and Conditions shall apply to any repaired or replaced Products supplied by the Seller under clause 8.5.
9. Susspension and cancellation by the Seller
9.1 If the Buyer becomes subject to any of the following:
- 9.1.1 the Buyer suspends, or threatens to suspend, payment of its debts or is deemed unable to pay its debts;
- 9.1.2 a petition is filed, notice given, resolution passed or an order is made for or in connection with the winding up of the Buyer;
- 9.1.3 (being an individual) the Buyer is subject to a bankruptcy petition or order;
- 9.1.4 a creditor or encumbrancer of the Buyer attaches or takes possession of the whole or any part of its assets and such process is not discharged within 14 days;
- 9.1.5 an application is made to court or an order is made for the appointment of an administrator;
- 9.1.6 a floating charge holder over the Buyer's assets has become entitled to appoint an administrative receiver;
- 9.1.7 the Buyer suspends or ceases, or threatens to suspend or cease, to carry on all or substantially the whole of its business; and/or
- 9.1.8 the Buyer's financial position deteriorates to such an extent that in the Seller's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; then, without limiting any other right or remedy available to the Seller, the Seller may cancel or suspend all further deliveries under the Contract or under any other contract between the Seller and the Buyer without incurring any liability to the Buyer and all outstanding sums in respect of the Products delivered to the Buyer shall become due immediately.
9.2 Termination of the Contract shall not affect any of the parties' rights or remedies that have accrued as at the date of such termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. Consumer's right to cancel
10.1 Where the Buyer is a consumer, they have a legal right to change their mind starting on the date when the Buyer places the Order and ending 14 days from the day after delivery of the Products. This right to change their mind does not exist where the Products have been made to the Buyer's specifications or where the Products have become inseparably mixed with other items after delivery. Where delivery is in instalments, the cancellation period ends 14 days from the day after the day on which the final instalment is delivered.
10.2 When exercising their right to cancel, the Buyer is entitled to a full refund for the Products less the cost incurred by the Seller in collecting the Products from the Buyer and any reasonable deduction for the diminution in value of the Products due to use by the Buyer.
10.3 The Buyer may cancel the Contract using any of the contact details set out in clause 2.1 or by completing and returning the model cancellation form set out at Schedule 1.
10.4 Once it has received notification of the cancellation, the Seller shall contact the Buyer to arrange to collect any Products which have already been delivered to the Buyer.
10.5 Subject to clause 10.6 the collection costs shall be deducted from the amount refunded to the Buyer. The collection costs shall be calculated as 20% of the cost of the returned Products.
10.6 The Seller will pay the collection costs where:
- 10.6.1 the Products are faulty of misdescribed; or
- 10.6.2 the cancellation is due to an error in the pricing or description of the Products or a delay in delivery.
11.1 If the Buyer fails to take delivery of the Products or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without limiting any other right or remedy available to the Seller, the Seller may:
- 11.1.1 store the Products until completion of delivery and charge the Buyer for the reasonable costs (including insurance) of such storage; and/ or
- 11.1.2 sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the Contract price.
12. Damage in transit
The Seller will replace free of charge any Products proved to the Seller's satisfaction to have been damaged in transit during delivery (if arranged by the Seller) provided that the carrier is immediately notified of such damage on delivery and thereby reports the same to the Seller by way of a delivery note marked "received damaged". It is the Buyer's responsibility to inspect the Products on delivery.
13. Force majeure
The Seller shall not be under any liability for any failure to perform any of its obligations under the Contract caused by a Force Majeure Event.
Both the Seller and the Buyer shall keep confidential and shall not without the prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between the parties relating to either party's business, the Products and the Contract. This clause 15 shall survive termination or expiry of the Contract.
15. Limitation of liability
15.1 Nothing in these Terms and Conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for:
- 15.1.1 fraud;
- 15.1.2 fraudulent misrepresentation;
- 15.1.3 death or personal injury caused to the buyer by reason of the negligence of the Seller or of its servants, employees or agents; or
- 15.1.4 any breach of the Buyer's legal rights in relation to the Products or defective products under the Consumer Protection Act 1987.
- 15.2 The Seller shall only be liable to the Buyer for foreseeable loss and damage caused by the Seller's breach of the Contract or failure to use reasonable care and skills.
15.3 Nothing in these Terms and Conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for:
- 15.3.1 fraud;
- 15.3.2 fraudulent misrepresentation;
- 15.3.3 death or personal injury caused to the Buyer by reason of the negligence of the Seller or of its servants, employees or agents;
- 15.3.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- 15.3.5 defective products under the Consumer Protection Act 1987.
15.4 In no circumstances shall the Seller be liable to the Buyer in contract, tort, (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof for any loss of profit, revenue, business, contract, revenues, wasted expenditure or anticipated savings or for any special indirect incidental or consequential damage or any nature whatsoever.
15.5 The Seller's liability to the Buyer in respect of all other losses, in contract, tort (including negligence or breach of statutory duty) or howsoever arising shall be limited to the price paid or payable by the Buyer in respect of the particular Product appertaining to the losses in question.
16.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract shall continue in full force and effect.
16.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 Any variation of the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by a person authorised by the Seller.
16.7 Where the Buyer is a consumer, they may submit any disputes under the Contract to the European Commission Online Dispute Resolution platform for resolution without having to bring a claim. https://ec.europa.eu/consumers/odr/main/?event=main.home.show
17. Jurisdiction and Governing Law
17.1 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 in all respects by English Law and the parties agree to submit to the non-exclusive jurisdiction of the courts of England and Wales.
Model Cancellation Form for consumer customers
(Complete and return this form only if you wish to withdraw from the contract)
To Brundle Gardener of 24-36 Lamson Road, Rainham, Essex RM13 9YY, firstname.lastname@example.org*
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods,
Ordered on [*]/received on [*],
Name of consumer(s),
Address of consumer(s).
Signature of consumer(s) (only if this form is notified on paper),
[*] Delete as appropriate
* If you wish to speak to someone by telephone, please use the telephone number provided for each of the stores on the Seller's website: www.brundlegardener/customer-services.