General Terms & Conditions
These Conditions apply to all orders for the purchase of goods and/or services from Granite & Marble Designer Surfaces Ltd (company number 07184390) and/or STONEnterprises (UK) Ltd (company number 08969742). The Customer's attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
CONDITIONS
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9:00 am to 5:00 pm on any Business Day.
Collection Location: has the meaning given in clause 4.3.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 25.
Consumer: a Customer who places an Order or otherwise purchases Goods and/or Services from the Supplier as a consumer otherwise than in the course of any business, profession or trade.
Contract: the contract between the Supplier and the Customer for the supply of Goods or Services or Goods and Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Delivery Location: has the meaning given in clause 4.2.
Deposit: has the meaning given in clause 10.7(a).
Force Majeure Event: has the meaning given in clause 17.1.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, agreed in writing by the Customer and the Supplier.
Group: the Supplier (as noted on the Order) together with any subsidiary or holding company from time to time of that Supplier and any subsidiary from time to of a holding company of that Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
Order: the Customer's order/request for the supply of Goods and/or Services, whether made orally, by telephone, by email, through the Supplier's showroom, website or social media channels, as set out in the Customer's purchase order form or otherwise communicated to the Supplier.
Services: the services, including Templates (if applicable), supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer (or, if not provided by the Supplier, as set out in the Customer's purchase order form).
Supplier: Granite & Marble Designer Surfaces Ltd (company number 07184390) or STONEnterprises (UK) Ltd (company number 08969742) as specified in the Order (or any other member in the same Group).
Supplier Materials: has the meaning given in clause 8.1(h).
Template: has the meaning given in clause 10.3.
Trade Customer: a Customer who places an Order or otherwise purchases Goods and/or Services from the Supplier in the course of a business, profession or trade.
1.2 In this agreement:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to the Supplier includes each member of its Group but, unless otherwise expressly stated, only for so long as it remains a member of the Supplier’s Group;
(c) a reference to a party includes its personal representatives, successors and permitted assigns;
(d) a reference to legislation or a legislative provision is a reference to it as amended or re-enacted, and a reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision;
(e) any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms; and
(f) unless otherwise expressly stated, a reference to writing or written excludes fax, email, SMS, WhatsApp or similar electronic communication methods.
2. Basis of contract
2.1 Each Order constitutes a separate offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 An Order shall only be deemed accepted when the Supplier:
(a) issues written acceptance of the Order;
(b) commences performance of the Order (including, but not limited to, carrying out any site visit, templating appointment, consultation or survey); or
(c) accepts any payment from the Customer in relation to that Order,
(whichever occurs first), at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Customer acknowledges that Orders may be placed without any face-to-face meeting and that the Supplier is entitled to rely upon information, measurements, specifications and instructions provided remotely by the Customer or any third party acting on the Customer's behalf.
2.4 The Supplier reserves the right to reject orders (at its sole discretion) for any reason, including (but not limited to) because: (a) a product is unexpectedly out of stock; (b) a credit reference the Supplier has obtained is unsatisfactory; (c) the Supplier has been unable to verify the Customer’s age (where the product is age-restricted); (d) the Customer is located outside the Supplier’s delivery areas, as stated on its website; or (e) the product was mispriced by the Supplier.
2.5 Where the Supplier cancels or rejects an Order in accordance with clause 2.3, the Supplier shall notify the Customer as soon as reasonably practicable and shall refund any sums paid by the Customer in respect of the cancelled/rejected Order.
2.6 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.
2.7 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.8 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or that are implied by law, trade custom, practice or course of dealing.
2.9 Each provision of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
2.10 Save to the extent expressly prohibited by law, the Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. Supply of Goods
3.1 The Goods are described in the Supplier's catalogue or on the Supplier’s website (as the case may be) in each case as modified by any applicable Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all Losses incurred by the Supplier as a result of 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 Goods Specification. This clause 3.2 applies to Trade Customers only and shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable law or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging material 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 Unless the parties agree that the Customer will collect the Goods, 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 Where the parties agree that the Customer will collect the Goods, the Customer shall collect the Goods from such of the Supplier's premises as the Supplier may specify to the Customer prior to collection or such other location as the parties may agree before delivery (Collection Location) within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready.
4.4 Delivery of the Goods is completed on the completion of unloading of the Goods at the Delivery Location or, if Goods are otherwise agreed to be collected, upon the Goods being made available to the Customer for collection at the Collection Location.
4.5 Any dates quoted for delivery of the Goods 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 as a result of 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 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.
4.7 If the Customer (being a Trade Customer) fails to take or accept delivery of the Goods (as the case may be) within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready for delivery, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods: (a) delivery of the Goods shall be deemed to have been completed at 9:00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and (b) the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance). This clause shall not apply to Consumers.
4.8 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 taken or accepted (as the case may be) actual 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. This clause shall not apply to Consumers.
4.9 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered, the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier may (at its discretion) make a pro rata adjustment to the invoice for the Goods. This clause shall not apply to Consumers.
The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. This clause shall not apply to Consumers.
5. Quality of Goods
5.1 The Supplier warrants that, on delivery, the Goods shall:
(a) conform in all material respects with their description;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, where supplied to a Trade Customer;
(c) be of satisfactory quality (within the meaning of the Consumer Rights Act 2015 and fit for any purpose held out by the Supplier, where supplied to a Consumer; and
(d) be free from material defects in design, material and workmanship.
5.2 Where the Supplier is manufacturing or supplying Goods based on measurements, templates, plans, dimensions or specifications provided by the Customer (or any third party), the Supplier shall be entitled to rely on them and the Customer is solely responsible for making sure those measurements are correct. The Supplier shall have no liability for any defect, mismatch, fitting issue, shortage, excess material requirement or additional cost resulting from inaccurate measurements, drawings or specifications supplied by or on behalf of the Customer. Any remedial work required as a result shall be chargeable at the Supplier's prevailing rates. Further information and tips on how to take and provide measurements are provided on the Supplier’s website and/or may be provided, on request, by the Supplier.
5.3 Notwithstanding clause 5.1 above, the Customer acknowledges and accepts that stone is a natural product and is not uniform in colour, texture, pattern, veining, movement, marking or finish. Any samples, photographs, displays or showroom examples are indicative only. Variations between samples and finished Goods shall not constitute defects or grounds for rejection. The true colour of any Goods supplied may not exactly match those shown on the Customer’s electronic device or otherwise on the Supplier’s website, in the Supplier’s catalogues or in any other marketing materials.
5.4 The Supplier does not warrant that Goods manufactured from separate batches will be identical in colour, shade, pattern or appearance. Industry-standard manufacturing tolerances shall be permitted.
5.5 The Customer acknowledges that joins may be visible and that the number and location of joins shall be determined by the Supplier acting reasonably having regard to: (a) slab size; (b) transportation requirements; (c) installation requirements; (d) structural support requirements; and (e) material characteristics.
5.6 Due to the nature of the Goods and the manufacturing processes used in their production, Goods may vary from the specifications, dimensions and measurements stated in the Order, Template, any Goods Specification or otherwise on the Supplier's website, catalogues, marketing materials or other documentation within the following tolerances:
(a) dimensions: ±3 mm;
(b) cut-outs: ±3 mm;
(c) overhangs: ±5 mm;
(d) bow and warpage: up to 0.5%;
(e) joins: visible joins in accordance with normal industry standards; and
(f) thickness: subject to normal industry standard manufacturing tolerances.
Variations within the above tolerances shall be regarded as compliant with the stated specification and shall not, of themselves, constitute a defect in the Goods.
5.7 Subject to clause 5.8, if:
(a) within the Relevant Period, the Customer gives notice in writing to the Supplier that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) 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 (unless otherwise agreed in writing or required by law),
the Supplier shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in clause 5.1, repair or replace the defective Goods, or refund the price of the defective Goods in full.
In this clause, Relevant Period shall mean: (a) five Business Days (in respect of Goods supplied to a Trade Customer); and (b) within a reasonable period of discovery after delivery (in respect of Goods supplied to a Consumer).
5.8 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.7;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by or on behalf of the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.9 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.
5.10 Except as otherwise provided in this clause 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. This clause does not affect any statutory rights of Consumers.
5.11 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.
6.2 Risk in the Goods shall pass to the Customer on completion of delivery.
6.3 Until title to the Goods purchased by a Trade Customer pass to it:
(a) the Customer shall:
(i) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(iii) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
(iv) notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.1(c) to clause 14.1(e); and
(v) give the Supplier such information as the Supplier may reasonably require from time to time relating to: (i) the Goods; and (ii) the Customer's ongoing financial position.
(b) the Supplier may require the Customer, at any time, to deliver up all Goods in its possession and control that have not been resold or irrevocably incorporated into another product and, where it fails to do so promptly, the Supplier may (and the Customer shall permit the Supplier to) enter any premises of the Customer or of any third party where the Goods are stored, to recover them.
7. Supply of Services
7.1 The Supplier shall supply any Services comprised in an Order to the Customer using reasonable care and skill in accordance with good industry standards and in accordance with the Service Specification (if any) in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in an Order but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
8. Customer's obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in either or both the Service Specification and the Goods Specification (as the case may be) are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier with access to the Customer's premises or other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services;
(f) obtain and at all times maintain all necessary licences, permissions and consents that may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) in respect of Trade Customers only, keep all materials, equipment and tools, documents, Templates, data and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Service Specification or the Goods Specification or both (as the case may be).
8.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier may suspend performance of the Services until the Customer remedies the Customer Default, and rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default. For example, where the Supplier needs to re-deliver on another vehicle or with extra manpower, or to reschedule services.
8.3 Where the Customer fails to provide access at the agreed installation or templating appointment, the Supplier may charge a reasonable abortive visit fee together with any additional transport, labour, storage or re-attendance costs incurred.
9. Customer conduct
9.1 The Customer shall ensure that all dealings with the Supplier's employees, agents, subcontractors and representatives are conducted in a respectful, professional and courteous manner.
9.2 The Customer shall not, and shall procure that any occupier of the premises, employee, contractor, agent, family member or other person present at the premises shall not:
(a) engage in any abusive, threatening, intimidating, violent, aggressive or offensive behaviour towards any employee, agent, subcontractor or representative of the Supplier;
(b) engage in any conduct which amounts to harassment, bullying, victimisation or unlawful discrimination;
(c) make any racist, sexist, homophobic, transphobic, religiously offensive, sexually inappropriate or otherwise discriminatory remarks or communications;
(d) engage in any unwanted physical contact, sexual conduct, sexual advances or sexually suggestive comments; or
(e) otherwise create an environment which the Supplier reasonably considers to be unsafe, hostile, intimidating, degrading, humiliating or offensive for its personnel.
9.3 Where the Supplier reasonably believes that any conduct described in this clause has occurred or is likely to occur, the Supplier may immediately withdraw its personnel from the premises, suspend performance of the Contract and/or refuse to continue supplying the Goods and/or Services until the issue has been resolved to the Supplier's reasonable satisfaction.
9.4 Any delay, additional costs, aborted visits, wasted time, storage charges, re-attendance costs or other expenses incurred by the Supplier as a consequence of exercising its rights under this clause shall be payable by the Customer on demand.
9.5 Any breach of this clause shall constitute a material breach of the Contract entitling the Supplier to terminate the Contract immediately upon written notice.
9.6 The Customer shall be responsible for the conduct of its employees, officers, workers, contractors, subcontractors and agents and shall indemnify the Supplier against all Losses, arising from any breach of this clause 9. This clause applies to Trade Customers only and shall survive termination of the Contract.
10. Charges and payment
10.1 The price for the Goods:
(a) is 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 at the date of delivery; and
(b) unless otherwise expressly stated, excludes the costs of packaging, insurance and transport of the Goods, which the Supplier shall be entitled to invoice to the Customer.
10.2 The charges for the Services shall be:
(a) the charges set out in the Order; or
(b) if no charges are quoted, or charges are quoted on a time and materials basis:
(i) the charges shall be calculated in accordance with the Supplier's daily fee rates set out in the Order or, if not provided in the Order, as set out in its current price list in force at the Commencement Date displayed on its website (as may be updated and notified to the client from time to time);
(ii) the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 9:00 am to 5.00 pm worked on Business Days; and
(c) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
10.3 Where the Customer (being a Consumer) places an Order for Goods and/or Services otherwise than via a third party or kitchen showroom, upon the later of acceptance of the Order and the date that the Supplier receives payment of the Deposit, the Supplier shall book in the Customer for, and shall supply, a template for the Goods (Template). The Supplier reserves the right to cancel or rearrange any templating appointment where the Deposit has not been paid in cleared funds before the scheduled appointment.
10.4 Where measurements and Templates are approved by the Customer (whether orally, in writing, by email, SMS, WhatsApp message, electronic signature or any other electronic form of communication), the Customer shall be deemed to have accepted: (a) all measurements; (b) slab layout; (c) cut-out locations; (d) edge profiles; and (e) join positions. Any changes requested after approval shall be subject to additional charges.
10.5 All costs, prices, charges, quotations and estimates provided prior to completion of the Template are estimates only. Upon completion of the Template, the Supplier reserves the right to amend the price/charges for any Goods and Services. The Supplier shall use reasonable endeavours to provide the Customer with written confirmation of the total price/charges for all Goods and Services within seven (7) Business Days of completion of the template.
10.6 All quotations and prices are based on fuel costs prevailing at the date of quotation. Where fuel costs increase at any time before completion of the Services and/or supply of Goods, the Supplier reserves the right to apply an additional fuel surcharge to reflect all or part of the increased cost of fuel. Any fuel surcharge will be: (a) calculated by reference to prevailing market conditions; (b) payable in addition to the agreed charges; (c) applied only to the extent reasonably necessary to address the increase in operating costs; and (d) notified to the Customer as soon as reasonably practicable. For Consumers, any fuel surcharge will only apply where permitted by law and where the Customer has been informed of the surcharge before the relevant services are carried out.
10.7 Where the Customer is a Trade Customer or a Consumer not requiring a Template, the Supplier shall invoice the Customer on or at any time after completion of delivery.
10.8 Where the Customer is a Consumer requiring a Template, the Supplier shall invoice the Customer:
(a) for an amount equal to 50% of the total price/charges (or estimated prices/charges, as the case may be) for all Goods and/or Services forming part of the Order on the Commencement Date (Deposit); and
(b) for the remaining balance of the total price/charges for all Goods and/or Services forming part of the Order, at any time prior to delivery.
10.9 The Customer shall pay each invoice submitted by the Supplier:
(a) prior to delivery of the Goods and/or Services to which the invoice relates, and in any event within seven (7) days of the date of the invoice (or, in respect of Trade Customers only, in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer) unless the Customer (being a Trade Customer) has been granted a trade credit account by the Supplier, in which case payment shall be made in accordance with the credit terms notified by the Supplier in writing from time to time; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier,
and time for payment shall be of the essence of the Contract.
10.10 The Supplier shall not be required to commence installation, delivery or any related services unless all sums due under the Contract have been paid in full and in cleared funds.
10.11 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, 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 or Services or both, as applicable, at the same time as payment is due for the supply of the Goods or Services. If the rate of VAT changes between the date of your Order and the date that the Goods are delivered, the Supplier shall adjust the rate of VAT payable by the Customer, unless the Customer has already paid in full before the change in the rate of VAT took effect.
10.12 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 14:
(a) all monies owed by the Customer to the Supplier shall become immediately due for payment;
(b) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.11 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(c) the Customer shall indemnify the Supplier against all Losses incurred by the Supplier as a result of the Customer’s failure to pay. This clause 10.11(c) applies to Trade Customers only and shall survive termination of the Contract.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). This clause applies to Trade Customers only.
11. Intellectual property rights
1.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by, or licensed by the relevant third party to, the Supplier. The Customer shall not acquire, and nothing in this agreement shall confer any rights to, any Intellectual Property Rights in any Goods or Services.
1.2 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the purpose of providing the Services to the Customer.
12. Data protection
12.1 The following definitions apply in this clause 12:
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
12.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
12.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor. The Supplier’s data protection and privacy notice, set out on its website, sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject.
12.4 Without prejudice to the generality of clause 12.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(b) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(c) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(d) assist the Customer (being a Trade Customer), at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
12.5 The Customer consents to the Supplier appointing any subcontractors necessary for the supply of Goods and/or Services as a third-party processor of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement which the Supplier confirms will reflect, and continue to reflect, the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 12.5.
13. Limitation of liability
13.1 The limits and exclusions in this clause 13 reflect the insurance cover the Supplier has been able to arrange. The Customer is responsible for making its own arrangements for the insurance of any excess liability.
13.2 References to liability in this clause 13 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
13.3 Where a clause states that it applies only to Trade Customers or only to Consumers, that clause shall apply accordingly. Nothing in these Conditions shall exclude or restrict any statutory rights available to a Consumer under applicable law, including the Consumer Rights Act 2015 and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
13.4 Nothing in the Contract limits any liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) 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 (title and quiet possession) (in each case in respect of Trade Customers only); (d) to the extent such rights cannot legally be limited, breach of the terms implied by Consumer Rights Act 2015 (in respect of Consumers only); (e) defective products under the Consumer Protection Act 1987; (f) any liability that legally cannot be limited; or (g) the Customer's payment obligations under the Contract.
13.5 Subject to clause 13.4, in respect of each Order, the Supplier's total liability to the Customer shall not exceed the total price/charges for all Goods and/or Services comprised in that Order. This clause applies to Trade Customers only.
13.6 Subject to clause 13.4, the following types of loss are wholly excluded (in respect of Trade Customers only): (a) loss of profits (including loss of anticipated savings); (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of use or corruption of software, data or information; (e) loss of or damage to goodwill; and (f) indirect or consequential loss.
13.7 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract. This clause applies to Trade Customers only.
13.8 This clause 13 shall survive termination of the Contract.
14. Termination
14.1 Without affecting any other right or remedy available to it, in respect of a Contract with a Trade Customer, the Supplier may terminate the Contract with immediate effect by giving written notice to the Trade Customer where:
(a) the Customer commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified to do so;
(b) the Supplier reasonably considers that the health, safety, welfare or dignity of its personnel may be put at risk (including, but not limited to, where the Customer commits any breach of clause 9);
(c) the Customer takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 14.1(c);
(d) the Customer suspends or ceases, or threatens to suspend or cease carrying on business; or
(e) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
14.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
14.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.1(c) to clause 14.1(e), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15. Consequences of termination
15.1 On termination or expiry of the Contract, the Customer shall:
(a) immediately pay to the Supplier all outstanding unpaid invoices of the Supplier (together with interest, if any, thereon) and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) return all Supplier Materials or Goods which have not been fully paid for. Until they have been returned, the Customer shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract. If the Customer fails to do so, where the Customer is a Trade Customer, the Supplier may enter the Customer's premises and take possession of them.
15.2 Termination or expiry of the Contract shall not affect the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16. 14-day cooling off period (for Consumers only)
16.1 This clause 16 applies to Consumers only.
16.2 Where the Customer is a Consumer and that Customer bought online, by mail order, over the telephone or on your doorstep, the Customer has a legal right to change its mind about their purchase of Goods and/or Services from the Supplier and to receive a refund, including the delivery costs, in respect of all payments made for those Goods and/or Services PROVIDED ALWAYS THAT:
(a) the Customer shall not be entitled change its mind about an Order for: (a) Services, once these have been completed; (b) Goods that are made to the Customer’s specifications or which are clearly personalised; or (c) Goods which become mixed inseparably with other items after their delivery;
(b) if a Customer changes its mind about an Order, it must notify the Supplier no later than 14 calendar days after:
(i) where the Order is for Goods, the date of delivery for Goods (and where Goods are split into several deliveries over different days, the period runs from the day after the last delivery);
(ii) where the Order is for Services, the date that the Supplier confirms it has accepted the Order, where the Order is Services; and
(iii) where the Order is for Goods and Services, the latest of the dates set out in clause 16.2(b)(i) and clause 16.2(b)(ii) above;
Notice of cancellation must be provided to the Customer in writing to the Supplier’s registered address or by email to info@designer-surfaces.co.uk
(c) if the Supplier is required (for any reason) to refund any deliver costs, the Supplier shall only refund standard delivery costs. The Supplier shall not be required be required to refund any additional/extra costs incurred (for example, costs for express delivery or delivery at a particular time).
(d) the Customer shall be required to pay for any Services received before the Customer notified the Supplier that is has changed its mind; and
(e) if the Customer handles the Goods in a way which would not be acceptable in-store, the Supplier shall be entitled reduce any refund to compensate the Supplier for the reduced value of those Goods (for example, where Goods are damaged). In some cases, because of the way the Goods have been treated by the Customer, the Supplier may be entitled to refuse to issue a refund.
16.3 Any refund issued to the Customer by the Supplier in accordance with this clause 16 shall: (a) in respect of a refund for Services, be issued soon as possible and, in any event, within 14 days being notified by the Customer that it wishes to cancel the Order; and (b) in respect of a refund for Goods, be issued within 14 days of receiving the Goods back from the Customer.
17. Force majeure
17.1 Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from any circumstance not within a party's reasonable control (Force Majeure Event) including (but not limited to): (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts (other than by the staff of the party seeking to rely on this clause or those of its subcontractors); and (h) interruption or failure of utility service.
17.2 If the period of delay or non-performance continues for 25 Business Days or more, either party may terminate the Contract by giving not less than 10 Business Days’ notice in writing to the affected party.
18. Assignment and other dealings
18.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
18.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
19. Notices and communications
19.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be: (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at:
(a) in the case of the Supplier, at its registered office;
(b) in the case of a Trade Customer, at its registered office (if a company) or its principal place of business (in any other case);
(c) in the case of a Consumer, at the Customer’s usual place of residence.
19.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address; or
(b) 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.
19.3 The Customer acknowledges that routine operational communications relating to Orders, templating appointments, approvals, delivery arrangements and installation appointments (but, for the avoidance of doubt, excluding any notice given, or to be given, to a party under or in connection with the Contract) may be conducted by telephone, SMS, WhatsApp, email or similar electronic communication methods.
19.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20. Severance
20.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
20.2 If any provision or part provision of the Contract is deemed deleted under this clause 20, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
21. Waiver
21.1 A waiver of any right or remedy is only effective if given in writing (excluding fax and email) and shall not be deemed a waiver of any subsequent right or remedy.
21.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
22. No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
23. Entire agreement
The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. This clause applies to Trade Customers only.
24. Third party rights
24.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
24.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
25. Variation
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
25. Governing law and jurisdiction
25.1 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
25.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.